Petition for Writ of Certiorari — K. E. K., Petitioner v. Waupaca County, Wisconsin
Supreme Court briefJul 2, 2021
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2021 WI 9
SUPREME COURT OF WISCONSIN
CASE NO.:
2018AP1887
COMPLETE TITLE:
In the matter of the mental commitment of
K.E.K.:
Waupaca County,
Petitioner-Respondent,
v.
K.E.K.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 389 Wis. 2d 104,936 N.W.2d 405
(2019 – unpublished)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
February 9, 2021
November 17, 2020
Circuit
Waupaca
Vicki L. Clussman
JUSTICES:
ZIEGLER, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL
BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a
dissenting opinion, in which KAROFSKY, J., joined
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Colleen D. Ball, assistant state public defender. There
was an oral argument by Colleen D. Ball.
For the petitioner-respondent, there was a brief filed by
David G. Been, Waupaca corporation counsel. There was an oral
argument by David G. Been.
APPENDIX A
1a
2021 WI 9
NOTICE
This opinion is subject to further
The final
editing and modification.
version will appear in the bound
volume of the official reports.
No.
2018AP1887
(L.C. No.
2017ME44)
STATE OF WISCONSIN
:
IN SUPREME COURT
In the matter of the mental commitment of
K.E.K.:
Waupaca County,
FILED
Petitioner-Respondent,
FEB 9, 2021
v.
Sheila T. Reiff
Clerk of Supreme Court
K.E.K.,
Respondent-Appellant-Petitioner.
ZIEGLER, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL
DALLET, J., filed a
BRADLEY, and HAGEDORN, JJ., joined.
dissenting opinion, in which KAROFSKY, 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unpublished decision of the court of appeals, Waupaca Cnty. v.
K.E.K.,
No.
2018AP1887,
unpublished
slip
op.
(Wis.
Ct.
App.
Sept. 26, 2020), affirming the Waupaca County circuit court's1
1
The Honorable Vicki L. Clussman presided.
2a
No.
2018AP1887
order extending K.E.K.'s involuntary commitment2 pursuant to Wis.
Stat. § 51.20(13)(g)3. (2017-18).3
¶2
that
K.E.K.
Wis.
Stat.
challenges
the
§ 51.20(1)(am),
commitment
the
extension
statute
upon
arguing
which
the
County relied to prove K.E.K.'s dangerousness, is both facially
unconstitutional and unconstitutional as applied to this case
because the statute does not require a sufficient showing of
current
dangerousness
dangerousness.4
as
exhibited
by
recent
acts
of
Specifically, she claims that the standard under
Wisconsin Stat. § 51.20, as well as the case law, uses
"recommitment" and "extension of a commitment" interchangeably,
and we do as well. See Portage Cnty. v. J.W.K., 2019 WI 54, ¶1
n.1, 386 Wis. 2d 672, 927 N.W.2d 509; see also Wis. Stat.
§§ 51.20(13)(g)2r., 3.
2
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
3
We note that K.E.K.'s petition for review also included a
question involving the circuit court's competency to exercise
subject matter jurisdiction over K.E.K.'s extension proceeding.
However, K.E.K. did not develop, nor discuss in any way, this
argument in her briefs.
Accordingly, we will not consider it.
See Serv. Emp. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393
Wis. 2d 38, 946 N.W.2d 35 ("We do not step out of our neutral
role to develop or construct arguments for parties; it is up to
them to make their case.").
4
2
3a
No.
2018AP1887
§ 51.20(1)(am) violates due process5 and equal protection of the
laws6 and is thus unconstitutional on its face and as applied.7
¶3
However,
similar
to
an
initial
commitment,
a
recommitment requires a showing of mental illness and current
dangerousness.
A recommitment petition must "establish the same
elements
the
with
commitment.
same
quantum
of
proof"
as
an
initial
Waukesha Cnty. v. J.W.J., 2017 WI 57, ¶20, 375
K.E.K. specifically alleges that Wis. Stat. § 51.20(1)(am)
violates substantive due process.
Substantive due process
derives from the Fifth and Fourteenth Amendments to the United
States Constitution.
See U.S. Const. amend. V ("No person
shall . . . be deprived of life, liberty, or property, without
due process of law."); amend. XIV, § 1 ("[N]or shall any State
deprive any person of life, liberty, or property, without due
process of law."). "Substantive due process provides protection
from 'certain arbitrary, wrongful government actions.'"
State
ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶57, 353 Wis. 2d 307,
845 N.W.2d 373 (quoting State v. Schulpius, 2006 WI 1, ¶33, 287
Wis. 2d 44, 707 N.W.2d 495).
5
The right to equal protection of the laws arises from the
Fourteenth Amendment to the United States Constitution.
See
U.S. Const. amend. XIV, § 1 ("No State shall . . . deny to any
person within its jurisdiction the equal protection of the
laws.").
6
K.E.K. also asserts that Wis. Stat. § 51.20(1)(am)
violates the Privileges or Immunities Clause of the Fourteenth
Amendment.
The Privileges or Immunities Clause provides, "No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States."
U.S. Const. amend. XIV, § 1.
K.E.K. asserts that "when [her]
brief invokes substantive due process, she is also invoking the
Privileges
or
Immunities
Clause."
Beyond
this
cursory
statement, she does not develop her argument based on the text
and
of
the
Privileges
or
Immunities
Clause.
history
Accordingly, we will not develop this argument and decline to
entertain K.E.K.'s Privileges or Immunities Clause claims.
See
Vos, 393 Wis. 2d 38, ¶24.
7
3
4a
No.
Wis. 2d 542, 895 N.W.2d 783.
2018AP1887
The initial commitment requires
proof that the individual is mentally ill, a proper subject for
treatment, and currently dangerous.
See Wis. Stat. § 51.20(1);
Portage Cnty. v. J.W.K., 2019 WI 54, ¶16, 386 Wis. 2d 672, 927
N.W.2d 509.
Section 51.20(1)(am) provides an alternative path
to
current
prove
demonstrates
"a
dangerousness
substantial
provided
likelihood,
the
based
on
evidence
the
subject
individual's treatment record, that the individual would be a
proper
subject
for
commitment
if
treatment
were
withdrawn."
§ 51.20(1)(am).
¶4
Accordingly,
conclude
we
that
K.E.K.
is
unable
to
prove that Wis. Stat. § 51.20(1)(am) cannot be enforced under
any
circumstances
because
due
process
and
the
statute
both
require a showing of mental illness and current dangerousness.
As such, K.E.K.'s facial due process challenge fails.
¶5
Moreover,
Wis.
Stat.
§ 51.20(1)(am)
creates
an
alternative path to give counties a more realistic basis by
which
to
prove
current
dangerousness
when
it
is
likely
the
committed individual would discontinue treatment if no longer
committed.
Thus, the state has a rational basis for treating
those recommitted under § 51.20(1)(am) and those committed under
§ 51.20(1)(a)2.e. differently.
¶6
are
Finally, K.E.K.'s as-applied constitutional challenges
disguised
sufficiency
of
the
evidence
challenges.
Her
argument is that she does not meet the statutory standard for
dangerousness,
not
that
Wis.
Stat.
§ 51.20(1)(am)
unconstitutional when applied to K.E.K.'s specific facts.
4
5a
is
No.
¶7
is
2018AP1887
Therefore, we conclude that Wis. Stat. § 51.20(1)(am)
constitutional
facially
constitutional
challenges
and
fail.
that
K.E.K.'s
Accordingly,
we
as-applied
affirm
the
decision of the court of appeals.
¶8
I.
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
On
November
22,
2017,
Waupaca
County
(the
County)
filed an initial petition seeking to commit K.E.K. under Wis.
Stat. § 51.20(1)(a)2.e., the "fifth standard."8
On December 8,
The "fifth standard" provides that "an individual, other
than an individual who is alleged to be drug dependent or
developmentally disabled," is considered "dangerous" if:
8
after
advantages
the
and
disadvantages
of
and
alternatives to accepting a particular medication or
treatment have been explained to him or her and
because
of
mental
illness,
evidences
either
incapability of expressing an understanding of the
advantages and disadvantages of accepting medication
or treatment and the alternatives, or substantial
incapability of applying an understanding of the
advantages, disadvantages, and alternatives to his or
her mental illness in order to make an informed choice
as to whether to accept or refuse medication or
treatment; and evidences a substantial probability, as
demonstrated
both
the
individual's
by
treatment
history and his or her recent acts or omissions, that
the individual needs care or treatment to prevent
further disability or deterioration and a substantial
probability that he or she will, if left untreated,
lack services necessary for his or her health or
safety and suffer severe mental, emotional or physical
harm that will result in the loss of the individual's
ability to function independently in the community or
the loss of cognitive or volitional control over his
or her thoughts or actions.
The probability of
suffering severe mental, emotional or physical harm is
not substantial under this subd.2.e. if reasonable
provision for the individual's care or treatment is
available in the community and there is a reasonable
5
6a
2017,
the
circuit
court
held
a
petition for initial commitment.
jury
trial
No.
2018AP1887
the
County's
on
The jury entered the verdict
that K.E.K. was mentally ill, a danger to herself and others,
and a proper subject for treatment.
On the basis of this jury
verdict,
an
the
circuit
court
entered
Order
of
Commitment,
committing K.E.K. for six months.
¶9
On May 22, 2018, the County filed a petition seeking
to extend K.E.K.'s commitment.
The petition alleged: (1) K.E.K.
was "currently under an order of commitment"; (2) K.E.K. was
"mentally ill, developmentally disabled or drug dependent, and a
proper subject for treatment"; (3) K.E.K. was "dangerous because
there
[was]
a
substantial
likelihood,
based
on
[K.E.K.'s]
treatment record, that [K.E.K.] would be a proper subject for
commitment
recommitment
if
treatment
of
were
[K.E.K.
withdrawn";
was]
and
(4)
that
recommended . . . for
protection of society, [K.E.K.], or both."
"a
the
Attached to the
petition was an evaluation conducted by K.E.K.'s case manager.
probability that the individual will avail himself or
herself of these services or if the individual is
appropriate for protective placement under ch. 55.
Food, shelter or other care that is provided to an
individual who is substantially incapable of obtaining
food, shelter or other care for himself or herself by
any person other than a treatment facility does not
constitute reasonable provision for the individual's
care or treatment in the community under this
subd.2.e. The individual's status as a minor does not
automatically establish a substantial probability of
suffering severe mental, emotional, or physical harm
under this subd.2.e.
Wis. Stat. § 51.20(1)(a)2.e.
6
7a
No.
2018AP1887
In this evaluation, K.E.K.'s case manager states, in part, "[A]t
this
time,
this
worker
believes
that
without
a
commitment,
[K.E.K.] would leave the facility she is living at, stop taking
her medications, and repeat all behaviors that were the cause of
the filing for the commitment in 2017."
¶10
The
circuit
court
petition on June 6, 2018.9
held
a
hearing
on
the
extension
At the hearing, the court heard from
the County's psychiatrist, who testified that K.E.K. "suffers
from schizophrenia, paranoid type."
He further opined about
K.E.K.'s actions if K.E.K. were no longer committed:
Well, I've explained I do believe she's improved
with her current treatment interventions care and safe
keeping at this group home, Evergreen and with
medications. But she has distinctive lack of insight
into her mental illness and that impedes her treatment
in general.
And so if she is off commitment or if treatment
is withdrawn, she will, in my opinion, almost
certainly stop her medications, she will almost
certainly leave Evergreen.
She mentioned to me that
she would live with family in Illinois, but her mother
cited advancing age, and just being uncomfortable with
the stress of this, due to her mother's age.
So I
don't think she has any kind of set housing set-up.
And I'm concerned that off mediations, which I believe
she would stop them, and without stable housing, she
would decompensate and become a proper subject for
commitment, in my opinion, again.
The court also heard from K.E.K.'s case manager.
She testified
that she believed "an extension is warranted because without the
treatment
and
care
that
[K.E.K.'s]
receiving
The day before the extension hearing, K.E.K. waived her
right to a jury trial, instead opting for a bench trial.
9
7
8a
No.
2018AP1887
currently, . . . [K.E.K.] will no longer take her medications,
become more unstable, and potentially [sic] a danger to herself
as a result of that."
The court also heard from the manager of
K.E.K.'s group home and K.E.K. herself.
¶11
At the conclusion of the testimony, the circuit court
found that K.E.K. would be a proper subject for recommitment.
The
specifically
court
burdens
in
showing
found
that
if
that
"the
treatment
county
were
has
met
its
withdrawn,
that
[K.E.K.] would be a proper subject for a commitment."
Relying
on the recommitment standard from Wis. Stat. § 51.20(1)(am), the
court found that K.E.K. was currently dangerous and ordered her
commitment be extended for 12 months.
¶12
K.E.K.
the
appealed
circuit
court's
commitment
extension order, challenging the constitutionality of Wis. Stat.
§ 51.20(1)(am).
On September 26, 2019, the court of appeals
affirmed, holding, in relevant part, that § 51.20(1)(am) does
not
violate
due
process
facially
nor
as
applied
to
K.E.K.
K.E.K., No. 2018AP1887, ¶¶33-40, 46-50.
¶13
On October 30, 2019, K.E.K. petitioned this court for
review.
We held the petition in abeyance pending resolution of
Winnebago
County
N.W.2d 875.
motion
to
v.
C.S.,
2020
WI
33,
391
Wis. 2d 35,
940
After this court's decision in C.S., K.E.K. filed a
amend
her
petition
for
review.
Her
new
petition
alleged that Wis. Stat. § 51.20(1)(am) violated due process, the
8
9a
No.
2018AP1887
Fourteenth Amendment's Privileges or Immunities Clause,10 and the
Equal Protection Clause.
We granted K.E.K.'s motion to amend
her petition and granted review.
II.
¶14
K.E.K.
brings
STANDARD OF REVIEW
facial
and
as-applied
challenges to Wis. Stat. § 51.20(1)(am).
constitutional
A facial challenge
claims the law is "unconstitutional on its face."
League of
Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97,
¶13, 357 Wis. 2d 360, 851 N.W.2d 302 (quoting State v. Wood,
2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63).
"Under a
facial challenge, the challenger must show that the law cannot
be enforced under any circumstances."
C.S., 391 Wis. 2d 35, ¶14
(quoting Winnebago Cnty. v. Christopher S., 2016 WI 1, ¶34, 366
Wis. 2d 1, 878 N.W.2d 109).
A statute under review is presumed
constitutional when challenged facially.11
Id.
As we stated above, K.E.K. did not develop this argument,
and we do not address her Privileges or Immunities Clause claim.
See supra, ¶2 n.7.
10
The parties dispute what burden of proof must be shown to
prove a statute is unconstitutional.
Relying on this court's
precedent, the County argues that K.E.K. must prove the statute
is unconstitutional beyond a reasonable doubt.
See Winnebago
Cnty. v. C.S., 2020 WI 33, ¶14, 391 Wis. 2d 35, 940 N.W.2d 875;
Mayo v. Wis. Injured Patients & Families Comp. Fund, 2018 WI 78,
¶27, 383 Wis. 2d 1, 914 N.W.2d 67.
Relying on federal
precedent, K.E.K. counters and argues that she must only make a
"plain showing" or "clearly demonstrate" that the law violates
the federal Constitution.
See United States v. Morrison, 529
U.S. 598, 607 (2000); Nat'l Fed'n of Indep. Bus. v. Sebelius,
567 U.S. 519, 538 (2012). We need not resolve this dispute in
this case because the law is constitutional under either
standard.
11
9
10a
No.
¶15
2018AP1887
"In contrast, in an as-applied challenge, we assess
the merits of the challenge by considering the facts of the
particular case in front of us 'not hypothetical facts in other
situations.'"
League
of
Women
Voters,
(quoting Wood, 323 Wis. 2d 321, ¶13).
357
Wis. 2d 360,
¶13
"[W]hile we presume the
statute is constitutional, 'we do not presume that the State
applies statutes in a constitutional manner.'"
Mayo v. Wis.
Injured Patients & Families Comp. Fund, 2018 WI 78, ¶56, 383
Wis. 2d
1, 914 N.W.2d 678 (quoting Tammy W-G. v. Jacob T., 2011
WI 30, ¶48, 333 Wis. 2d 273, 797 N.W.2d 854).
¶16
Under either type of challenge, "the constitutionality
of a statute is a question of law we review de novo."
C.S., 391
Wis. 2d 35, ¶13.
¶17
K.E.K.'s argument requires us to interpret Wis. Stat.
§ 51.20(1)(am).
"[S]tatutory interpretation is a question of
law we review de novo."
J.W.K., 386 Wis. 2d 672, ¶10.
we have already interpreted § 51.20(1)(am).
However,
See id., ¶¶19, 23-
24.
"[W]here a statute has been authoritatively interpreted by
this
court,
the
establish
that
wrong.'"
State
party
our
v.
challenging
prior
that
interpretation
interpretation
Breitzman,
2017
WI
was
100,
must
'objectively
¶5
n.4,
378
Wis. 2d 431, 904 N.W.2d 93; see also Johnson Controls, Inc. v.
Emp'rs Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665
N.W.2d 257; Progressive N. Ins. Co. v. Romanshek, 2005 WI 67,
¶45, 281 Wis. 2d 300, 697 N.W.2d 417.
10
11a
No.
III.
¶18
2018AP1887
ANALYSIS
K.E.K. is challenging her recommitment on the basis
that Wis. Stat. § 51.20(1)(am) is unconstitutional facially and
as
applied.
Section
51.20
"governs
involuntary
commitments for mental health treatment."
State v. Dennis H.,
2002 WI 104, ¶14, 255 Wis. 2d 359, 647 N.W.2d 851.
"contains
different
five
dangerousness
for
definitions
purposes"
of
see also § 51.20(1)(a)2.a.-e.
an
civil
or
initial
The statute
standards
of
Id.;
commitment.
After an initial commitment, a
county can seek an extension of a commitment for "a period not
to exceed one year."
§ 51.20(13)(g)1., 3.
proceeding,
county
may
five
standards
either
a
the
§ 51.20(1)(a)2.a.-e.
or
prove
current
of
under
combination with § 51.20(1)(am).
those
At a recommitment
dangerousness
dangerousness
five
under
under
standards
in
J.W.K., 386 Wis. 2d 672, ¶18;
Langlade Cnty. v. D.J.W., 2020 WI 41, ¶50, 391 Wis. 2d 231, 942
N.W.2d 277.
alternative
Pursuant
avenue
for
to
§ 51.20(1)(am),
proving
a
dangerousness
county
at
an
has
extension
proceeding:
If the individual has been the subject of inpatient
treatment for mental illness . . . immediately prior
to commencement of the proceedings as a result
of . . . a commitment or protective placement ordered
by a court under this section . . . the requirements
of a recent overt act, attempt or threat to act under
par. (a)2.a. or b., pattern of recent acts or
omissions under par. (a)2.c. or e., or recent behavior
under par. (a)2. d. may be satisfied by a showing that
there is a substantial likelihood, based on the
subject
individual's
treatment
record,
that
the
individual would be a proper subject for commitment if
treatment were withdrawn.
11
12a
an
No.
2018AP1887
Wis. Stat. § 51.20(1)(am).
¶19
We
combination
later
explained
that
with
the
standards
five
this
section
of
works
in
dangerousness,
specifically focusing on the standard set forth in Wis. Stat.
§ 51.20(1)(a)2.d.:
[W]e focus on whether the introduced testimony meets
the standard for dangerousness set by Wis. Stat.
§ 51.20(1)(a)2.d., as viewed through the lens of
§ 51.20(1)(am).
That is, the testimony must provide
sufficient evidence to support the conclusion that
D.J.W. would be "unable to satisfy basic needs for
nourishment, 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
will
imminently
ensue[,]"
disease
§ 51.20(1)(a)2.d.,
treatment
were
withdrawn.
if
§ 51.20(1)(am).
D.J.W.,
Wis. 2d 231,
391
¶50.
Accordingly,
Wis.
Stat.
§ 51.20(1)(am) works in combination with the five standards to
provide
counties
with
an
alternative
avenue
for
proving
dangerousness.
¶20
K.E.K.
argues
unconstitutional
because
violates
her
committed
without
right
to
a
that
Wis.
her
Stat.
due
process
showing
of
by
current
recommitment
is
§ 51.20(1)(am):
(A)
to
be
dangerousness;
(B)
allowing
her
violates her right to equal protection of the law by allowing
commitment
under
under
fifth
the
circumstances
standard
different
of
This court discussed the
standard in Dennis H., stating:
12
12
13a
than
dangerousness;12
requirements
those
and
for
existing
(C)
the
is
fifth
No.
2018AP1887
unconstitutional as applied to the specific facts of her case.
We disagree and uphold the statute against her due process,
equal protection, and as-applied challenges.
A.
¶21
Due Process
K.E.K. argues that Wis. Stat. § 51.20(1)(am) violates
her constitutional right to due process.
§ 51.20(1)(am)
does
not
dangerousness
because
it
prove
acts
or
what
§ 51.20(1)(am)
recent
misconstrues
Section
51.20(1)(am)
require
does
not
a
facially
showing
require
omissions.
is
K.E.K. asserts that
the
However,
and
due
of
current
government
to
this
position
process
require.
constitutional
because
it
requires a showing of mental illness and current dangerousness,
as due process demands.
Accordingly, K.E.K. cannot show that
§ 51.20(1)(am) "cannot be enforced under any circumstances."
The fifth standard permits commitment only when a
mentally ill person needs care or treatment to prevent
deterioration but is unable to make an informed choice
to accept it. This must be "demonstrated by both the
individual's treatment history" and by the person's
"recent
acts
or
omissions."
Wis.
Stat.
§ 51.20(1)(a)2.e. [(1999-2000).]
It must also be
substantially probable that if left untreated, the
person "will suffer severe mental, emotional or
physical harm" resulting in the loss of the "ability
to function independently in the community" or in the
loss of "cognitive or volitional control." Id. Only
then may the individual be found "dangerous" under the
fifth standard.
State v. Dennis
N.W.2d 851.
H.,
2002
WI
104,
13
14a
¶39,
255
Wis. 2d 359,
647
No.
1.
¶22
Wisconsin Stat. § 51.20(1)(am) requirements
Statutory interpretation "begins with the language of
the statute."
Cnty.,
2018AP1887
2004
State ex rel. Kalal v. Circuit Court for Dane
WI
58,
¶45,
Wis. 2d 633,
271
(internal quotations omitted).
our inquiry ends.
Id.
681
N.W.2d 110
If its meaning is plain, then
We give statutory language "its common,
ordinary, and accepted meaning."
Id.
We give "technical or
specially-defined words or phrases" their "technical or special
definitional meaning."
Id., ¶46.
Id.
"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."
¶23
However,
interpreted
a
Id.
when
we
have
already
statute,
we
are
bound
authoritatively
to
follow
that
interpretation unless there is a special justification to depart
from
our
earlier
See
interpretation.
Johnson
Controls,
264
Wis. 2d 60, ¶94; Progressive N. Ins. Co., 281 Wis. 2d 300, ¶45.
Because
we
already
J.W.K.,
we
must
interpreted
Wis.
follow
previous
our
Stat.
§ 51.20(1)(am)
in
interpretation
of
§ 51.20(1)(am).
¶24
As we stated in J.W.K., at a recommitment proceeding,
"the County may, as an alternative to the options outlined in
§ 51.20(1)(a)2.a.-e.,
substantial
prove
likelihood,
dangerousness
based
on
the
by
subject
showing
'a
individual's
treatment record, that the individual would be a proper subject
for
commitment
if
treatment
were
14
15a
withdrawn.'"
J.W.K.,
386
No.
Wis. 2d 672, ¶19.
evidentiary
2018AP1887
"[P]aragraph (am) functions as an alternative
path,
reflecting
a
change
in
circumstances
occasioned by an individual's commitment and treatment."
¶25
Id.
However, each recommitment, including those where the
County utilizes Wis. Stat. § 51.20(1)(am), "requires the County
to
prove
the
same
elements
with
the
same
required for the initial commitment."
quantum
Id., ¶24.
of
proof
An initial
commitment requires a county to prove that the individual is
mentally ill, a proper subject for commitment, and currently
dangerous.
See § 51.20(1); J.W.K., 386 Wis. 2d 672, ¶16.
We
explained that:
The dangerousness standard is not more or less onerous
during an extension proceeding; the constitutional
mandate that the County prove an individual is both
mentally ill and dangerous by clear and convincing
evidence remains unaltered.
Each extension hearing
requires proof of current dangerousness.
It is not
enough that the individual was at one point a proper
subject for commitment.
The County must prove the
individual "is dangerous."
The alternate avenue of
showing dangerousness under paragraph (am) does not
change the elements or quantum of proof required. It
merely acknowledges that an individual may still be
dangerous
the
absence
of
recent
acts,
despite
omissions,
behaviors
exhibiting
dangerousness
or
outlined in § 51.20(1)(a)2.a.-e.
J.W.K., 386 Wis. 2d 672, ¶24 (citations omitted).
¶26
Accordingly,
as
we
authoritatively
determined
in
J.W.K., Wis. Stat. § 51.20(1)(am) merely provides an alternative
path for the County to prove current dangerousness——it does not
change
the
convincing
requirement
evidence,
that
that
the
the
County
prove,
individual
is
15
16a
by
clear
mentally
and
ill,
a
No.
2018AP1887
proper subject for treatment, and currently dangerous.
Id.
We
reaffirm that determination.
2.
¶27
Due process and commitment proceedings
The
Constitution
forbids
the
government
from
"depriv[ing] any person of life, liberty, or property, without
due
process
of
law."
prohibition
to
the
(applying
the
same
U.S.
Const.
federal
to
the
amend.
government);
States).
V
(applying
amend.
the
XIV,
§ 1
for
any
"[C]ommitment
purpose constitutes a significant deprivation of liberty that
requires due process protection."
J.W.K., 386 Wis. 2d 672, ¶16.
As we stated last term, "in a civil commitment case, due process
requires
the
evidence
that
[government]
dangerous."
the
to
prove
individual
Marathon
Cnty.
is
v.
by
clear
both
D.K.,
and
convincing
mentally
2020
WI
8,
ill
and
¶29,
390
Wis. 2d 50, 937 N.W.2d 901.
¶28
The
United
States
Supreme
Court
established
that,
before the government can commit someone and deprive that person
of liberty, "the [government] must prove by clear and convincing
evidence that [the individual] is demonstrably dangerous to the
community."
Foucha
v.
Louisiana,
504
U.S.
71,
81
(1992).
K.E.K. asserts that this means the County must use recent acts
or omissions to prove she is "demonstrably dangerous."
However,
no such requirement appears in Foucha, nor has the Court ever
required
a
specific
dangerousness.
Indeed,
type
of
"[i]n
evidence
this
to
complicated
prove
current
and
difficult
area, the Supreme Court 'has wisely left the job of creating
statutory definitions to the legislators who draft state laws.'"
16
17a
No.
2018AP1887
Dennis H., 255 Wis. 2d 359, ¶38 (quoting
State v. Post, 197
Wis. 2d 279, 304, 541 N.W.2d 115 (1995)).
As such, we decline
to create, from whole-cloth, a constitutional requirement that a
county use recent acts or omissions at a commitment extension
proceeding.
Instead, we rely on the options the legislature
provided
the
five
to
standards
counties
from
Wis.
to
prove
Stat.
current
dangerousness——the
§ 51.20(1)(a)2.a.-e.
and
the
alternative evidentiary path from § 51.20(1)(am).
It is the
definitions
that
and
requirements
the
legislature
chose
must
comport with due process, not the novel requirement that K.E.K.
proposes.
3.
¶29
Wisconsin Stat. § 51.20(1)(am) satisfies due process.
To satisfy due process, the government must prove that
the individual is both mentally ill and currently dangerous by
clear and convincing evidence.
See Foucha, 504 U.S. at 81.
We
have held that, at a recommitment proceeding, a county must meet
this due process standard.
J.W.K., 386 Wis. 2d 672, ¶24.
Thus,
to succeed on a due process claim here, K.E.K. must prove that
Wis. Stat. § 51.20(1)(am) does not require a showing of current
dangerousness.
unanimously
K.E.K.
recognized,
cannot
do
so
because,
as
this
§ 51.20(1)(am)
creates
an
alternative
17
18a
court
No.
evidentiary path to prove current dangerousness.
2018AP1887
See J.W.K.,
386 Wis. 2d 672, ¶¶24, 34.13
¶30
Therefore, because Wis. Stat. § 51.20(1)(am) requires
proof of current dangerousness, it satisfies the Due Process
Clause's
Accordingly,
requirements.
K.E.K.
cannot
show
that
§ 51.20(1)(am) violates Due Process in all applications, so her
facial challenge fails.
B.
¶31
K.E.K.
also
Equal Protection
alleges
that
Wis.
Stat.
§ 51.20(1)(am)
violates her constitutional right to equal protection of the
laws by allowing for commitment under different standards than a
commitment under the fifth standard, § 51.20(1)(a)2.e.
However,
the state14 has a rational basis for allowing these different
evidentiary
standards.
Accordingly,
K.E.K.'s
facial
equal
protection claim fails.
¶32
K.E.K. claims that those recommitted under Wis. Stat.
§ 51.20(1)(am) and those committed under the fifth standard are
similarly situated, but that a county may commit someone under
The majority opinion in J.W.K. stated that "[e]ach
extension
current
hearing
requires
proof
of
dangerousness . . . . The County must prove the individual 'is
dangerous.' The alternate avenue of showing dangerousness under
paragraph (am) does not change the elements or quantum of proof
required."
J.W.K., 386 Wis. 2d 672, ¶24 (citations omitted).
Similarly, the dissent described Wis. Stat. § 51.20(1)(am) as
"creating
alternative
path
to
prove
current
an
dangerousness . . . ." Id., ¶35 (Dallet, J., dissenting).
13
Although it is the counties who file petitions under Wis.
Stat. § 51.20, the state created the commitment scheme via
statute.
Accordingly, the state must possess a rational basis
for any differential treatment, not the counties.
14
18
19a
No.
2018AP1887
§ 51.20(1)(am) without proving the elements that we held are
necessary for a commitment under the fifth standard.15
argues
that
the
state
does
not
have
a
rational
K.E.K.
basis
for
requiring these elements for an initial commitment under the
fifth standard and a recommitment under § 51.20(1)(am).
Thus,
she
equal
§ 51.20(1)(am)
asserts,
violates
her
right
to
protection of the laws.
¶33
"To prove an equal protection clause violation, the
party challenging a statute's constitutionality must show that
'the
state
unconstitutionally
situated classes differently.'"
treats
members
of
similarly
State v. West, 2011 WI 83, ¶90,
336 Wis. 2d 578, 800 N.W.2d 929 (quoting Post, 197 Wis. 2d at
318).
However,
require
that
"[t]he
such
right
to
similarly
equal
situated
protection
classes
does
be
not
treated
identically, but rather requires that the distinction made in
treatment
have
some
relevance
to
the
purpose
for
which
We described these necessary elements for a commitment
under the fifth standard in Dennis H.:
15
The fifth standard permits commitment only when a
mentally ill person needs care or treatment to prevent
deterioration but is unable to make an informed choice
to accept it. This must be "demonstrated by both the
individual's treatment history" and by the person's
"recent acts or omissions."
It must also be
substantially probable that if left untreated, the
person "will suffer severe mental, emotional or
physical harm" resulting in the loss of the "ability
to function independently in the community" or in the
loss of "cognitive or volitional control."
Dennis H., 255 Wis. 2d 359, ¶39 (citation omitted).
19
20a
No.
classification of the classes is made."
Id.
step
to
an
in
equal
protection
claim
is
2018AP1887
Thus, the first
identify
situated, yet differently treated individuals.
similarly
See Dennis H.,
255 Wis. 2d 359, ¶31; Post, 197 Wis. 2d at 318-19.
The second
step is to determine if the government has an appropriate basis
for the different classifications and treatment.
See Dennis H.,
255 Wis. 2d 359, ¶31.
¶34
Those committed under Wis. Stat. § 51.20(1)(am) and
those committed under the fifth standard are similarly situated.
A county, under either § 51.20(1)(am) or the fifth standard,
must prove exactly the same underlying elements with the same
quantum
of
proof
required
for
See
commitment.
J.W.K.,
386
Wis. 2d 672, ¶24 ("The alternate avenue of showing dangerousness
under paragraph (am) does not change the elements or quantum of
proof required.
still
be
omissions,
It merely acknowledges that an individual may
dangerous
or
despite
behaviors
it
absence
exhibiting
§ 51.20(1)(a)2.a.-e.").
§ 51.20(1)(am),
the
Moreover,
does
so
in
of
recent
dangerousness
when
a
combination
acts,
outlined
county
with
the
in
uses
five
standards, including when a county commits someone under the
fifth standard through the lens of § 51.20(1)(am).
391 Wis. 2d 231, ¶50.
See D.J.W.,
That is, the two statutes work in concert
with each other, so those committed under either section face
nearly identical elements and restraints.
Accordingly, a person
facing a commitment under the fifth standard and a person facing
an extension of a commitment under § 51.20(1)(am) are similarly
situated.
Cf.
Post,
197
Wis. 2d
20
21a
at
318-19
(holding
that
"persons
committed
under
chapters
51
and
980
No.
2018AP1887
are
similarly
situated for purposes of an equal protection comparison").
¶35
Because
committed
those
under
Wis.
Stat.
§ 51.20(1)(am) and those committed under the fifth standard are
similarly situated, we must evaluate whether the "statutorily
distinctive
mechanisms
for
dealing
with
the
two
classes
was
proper in light of the difference between the classifications."
West, 336 Wis. 2d 578, ¶92.
"Whether a legislative distinction
between
situated
otherwise
similarly
persons
violates
equal
protection depends upon whether there is a reasonable basis to
support
Dennis
H.,
255
classification
does
not
involve
protection
denied
only
it."
is
Wis. 2d 359,
if
a
the
"Where
¶31.
suspect
class,
legislature
has
irrational or arbitrary classification."
the
equal
made
an
Id. (quoting State ex
rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 733, 416 N.W.2d 883
(1987)).
Describing the power of the state to create different
classifications, we have stated:
"[T]he state retains broad discretion to create
classifications so long as the classifications have a
reasonable basis."
Under the rational basis test, a
statutory classification is presumed to be proper. It
will be sustained if the reviewing court can identify
any reasonable basis to support it. Any doubt must be
resolved in favor of the reasonableness of the
classification
and
the
constitutionality
of
the
statute in which it is made. A "legislative enactment
must be sustained unless it is 'patently arbitrary'
and bears no rational relationship to a legitimate
government interest."
Dennis
H.,
255
Wis. 2d 359,
¶32
(citations
omitted).
Accordingly, we apply a rational basis level of scrutiny to Wis.
21
22a
No.
2018AP1887
Stat. § 51.20(1)(am) and will sustain it if we can identify "any
reasonable basis to support" the different classifications.
¶36
We determine that the state has a reasonable basis for
treating
those
committed
under
committed
Wis.
under
Stat.
the
fifth
§ 51.20(1)(am)
standard
and
those
differently.
The
purpose of § 51.20(1)(am) "is to allow extension of a commitment
when the patient's condition has not improved enough to warrant
discharge.
action
Because of the therapy received, evidence of recent
exhibiting
'dangerousness'
is
often
nonexistent.
Therefore, the emphasis is on the attendant consequence to the
patient should treatment be discontinued."
M.J. v. Milwaukee
Cnty. Combined Cmty. Servs. Bd., 122 Wis. 2d 525, 530-31, 362
N.W.2d 190 (Ct. App. 1984); see also J.W.K., 386 Wis. 2d 672,
¶23.
only
Thus, unlike the fifth standard, § 51.20(1)(am) applies
to
patients
that
are
already
receiving
treatment.
By
enacting this alternative means of showing dangerousness, the
legislature conceivably could have wanted——and likely did want——
to
give
counties
a
more
realistic
basis
by
which
to
prove
current dangerousness when it is likely the committed individual
would discontinue treatment if no longer committed.
See J.W.K.,
386 Wis. 2d 672, ¶24 ("[Wisconsin Stat. § 51.20(1)(am)] merely
acknowledges that an individual may still be dangerous despite
the absence of recent acts, omissions, or behaviors exhibiting
dangerousness outlined in § 51.20(1)(a)2.a.-e.").
of appeals previously explained:
22
23a
As the court
No.
2018AP1887
The clear intent of the legislature in amending [Wis.
Stat. § 51.20(1)(am)] was to avoid the "revolving
door" phenomena whereby there must be proof of a
recent overt act to extend the commitment but because
the patient was still under treatment, no overt acts
occurred and the patient was released from treatment
only to commit a dangerous act and be recommitted.
The result was a vicious circle of treatment, release,
overt act, recommitment.
The legislature recognized
the danger to the patients and others of not only
allowing
for,
but
requiring,
overt
acts
as
a
prerequisite for further treatment.
State v. W.R.B., 140 Wis. 2d 347, 351, 411 N.W.2d 142 (Ct. App.
1987).
Accordingly,
door"
phenomena
is
we
hold
that
a
reasonable
addressing
the
"revolving
basis
the
different
for
evidentiary avenues of § 51.20(1)(am) and the fifth standard.
¶37
Accordingly, K.E.K. is unable to prove that the state
impermissibly
treats
§ 51.20(1)(am)
and
differently.
Therefore, the statute does not violate K.E.K.'s
those
those
committed
committed
under
under
the
Wis.
fifth
Stat.
standard
right to equal protection of the laws.
C.
¶38
K.E.K.
also
As Applied
challenges
Wis.
constitutionality as applied to her.
Stat.
§ 51.20(1)(am)'s
She claims that, based on
the specifics of her case, § 51.20(1)(am) violates due process,
the Privileges or Immunities Clause, and the Equal Protection
Clause.
She
argues
that,
because
she
was
not
dangerous
to
herself or others, "§ 51.20(1)(am) plainly, clearly, and beyond
a reasonable doubt violates the 14th Amendment as applied to the
facts
of
[her]
case."
This
argument,
however,
advances
an
evidentiary sufficiency challenge under the guise of as-applied
constitutional
challenges.
Accordingly,
23
24a
K.E.K.'s
as-applied
No.
2018AP1887
constitutional challenges to § 51.20(1)(am) fail because they
are sufficiency of the evidence challenges, not constitutional
challenges.
¶39
A claim that a statute is unconstitutional as applied
is "a claim that a statute is unconstitutional on the facts of a
particular case or to a particular party."
Voters with Facts v.
City
382
of
Eau
Claire,
WI
2018
63,
¶60,
Wis. 2d 1,
913
N.W.2d 131 (quoting Olson v. Town of Cottage Grove, 2008 WI 51,
¶44
n.9,
309
Wis. 2d 365,
N.W.2d 211).
749
Although
these
claims operate on the basis of the "facts of a particular case,"
it does not transform the as-applied constitutional challenge
into
an
alternative
means
to
attack
the
sufficiency
of
the
evidence.
¶40
K.E.K.
asserts
that
"[i]t
is
undisputed
that
[she]
posed no danger to herself or others during her commitment."
This is not a challenge to the constitutionality of the statute
as applied to K.E.K.'s facts; it challenges the application of
the statute to the facts of this case.
The statute has no
application, constitutional or otherwise, against those who are
not currently dangerous.
See, e.g., D.J.W., 391 Wis. 2d 231,
¶59 (concluding the evidence was insufficient at a recommitment
hearing to prove dangerousness under Wis. Stat. § 51.20(1)(am)).
If K.E.K. is not currently dangerous, the County has no power to
commit her under the statute.
it
does
not
mean
the
If the evidence is insufficient,
statute
is
unconstitutional——it
means that the County violated the statute.
24
25a
merely
No.
¶41
Accordingly,
challenges fail.
evidence,
constitutional
as-applied
Her dispute is with the sufficiency of the
with
not
K.E.K.'s
2018AP1887
the
constitutionality
of
Wis.
Stat.
§ 51.20(1)(am).
IV.
¶42
CONCLUSION
We conclude that K.E.K. is unable to prove that Wis.
Stat. § 51.20(1)(am) cannot be enforced under any circumstances
because due process and the statute both require a showing of
mental illness and current dangerousness.
As such, K.E.K.'s
facial due process challenge fails.
¶43
Moreover,
Stat.
Wis.
§ 51.20(1)(am)
creates
an
alternative path to give counties a more realistic basis by
which
prove
to
current
dangerousness
when
it
is
likely
the
committed individual would discontinue treatment if no longer
committed.
Thus, the state has a rational basis for treating
those recommitted under § 51.20(1)(am) and those committed under
§ 51.20(1)(a)2.e. differently.
¶44
are
Finally, K.E.K.'s as-applied constitutional challenges
disguised
sufficiency
of
the
evidence
challenges.
Her
argument is that she does not meet the statutory standard for
dangerousness,
not
that
Wis.
Stat.
§ 51.20(1)(am)
is
unconstitutional when applied to K.E.K.'s specific facts.
¶45
is
Therefore, we conclude that Wis. Stat. § 51.20(1)(am)
facially
constitutional
constitutional
challenges
and
fail.
decision of the court of appeals.
25
26a
that
K.E.K.'s
Accordingly,
we
as-applied
affirm
the
No.
By
the
Court.—The
decision
affirmed.
26
27a
of
the
court
of
2018AP1887
appeals
is
No.
¶46
REBECCA
FRANK
DALLET,
2018AP1887.rfd
(dissenting).
J.
The
Fourteenth Amendment to the United States Constitution prohibits
the
government
from
involuntarily
confining
a
person
with
a
mental illness unless it can prove that person is currently
dangerous.
K.E.K.
argues
that
Wis.
Stat.
§ 51.20(1)(am)
(2017-18)1 is unconstitutional because it allows the government
to
extend
her
commitment
based
not
on
her
recent
acts
or
omissions but on a treatment record detailing past behaviors and
on predictions that, if no longer committed, she might behave
dangerously in the future.
In the face of that constitutional
challenge, the majority fails to engage in any real analysis of
whether
this
type
constitutional muster.
facially
of
"alternative"
It does not.
unconstitutional
because
evidence
passes
Section 51.20(1)(am) is
it
eliminates
the
constitutionally required showing of current dangerousness in
favor of "alternative" evidence that shows only that a person
was
or
might
become
dangerous.
Therefore,
I
respectfully
dissent.
K.E.K.'s challenge implicates only the first of the three
sentences in Wis. Stat. § 51.20(1)(am).
If successful, her
challenge would void only that sentence because the other two
are distinct, separable, and not dependent on the first.
See
State v. Hezzie R., 219 Wis. 2d 848, 863, 580 N.W.2d 660 (1998)
("[P]art of a statute may be unconstitutional, and the remainder
may still have effect, provided the two parts are distinct and
separable and are not dependent upon each other." (quoting
Muench v. PSC, 261 Wis. 492, 515, 55 N.W.2d 40 (1952))).
Therefore, when I refer to § 51.20(1)(am), I refer only to its
first sentence.
1
1
28a
No.
2018AP1887.rfd
I
¶47
The
civil
commitment
of
persons
diagnosed
with
a
mental illness constitutes a government exercise of either its
parens patriae power to care for citizens unable to care for
themselves or its police power to prevent harm to the community.
See Addington v. Texas, 441 U.S. 418, 426 (1979).
While both
are
boundless.
legitimate
Involuntary
government
mental
health
interests,
neither
is
commitments
are,
after
significant deprivation of liberty."
U.S. 480, 491–92 (1980).
all,
"a
Id.; Vitek v. Jones, 445
They deprive persons of their most
basic and fundamental freedom "to go unimpeded about [their]
affairs" and to make decisions regarding their health.
Lessard
v. Schmidt, 349 F. Supp. 1078, 1084 (E.D. Wis. 1972), vacated
and
remanded
on
grounds,
other
421
U.S. 957
(1975),
reinstated, 413 F. Supp. 1318 (E.D. Wis. 1976).
¶48
The
Constitution
Fourteenth
guarantees
Amendment
that
no
committed without due process.
("[C]ommitment . . . produces
to
the
citizen
may
United
be
States
involuntarily
See Vitek, 445 U.S. at 491–92
'a
massive
curtailment
of
liberty,' and in consequence 'requires due process protection.'"
(quoted
sources
omitted)).
Thus,
an
individual
facing
commitment must have a meaningful opportunity to contest the
evidence against her.
State v. Hanson, 98 Wis. 2d 80, 86, 295
N.W.2d 209
1980),
(Ct.
App.
N.W.2d 452 (1981).
aff'd,
100
Wis. 2d 549,
302
And because an involuntary mental health
commitment is premised on either an individual's inability to
care
for
herself
or
her
danger
2
29a
to
the
public,
due
process
No.
dictates
that
the
government
must
demonstrate,
2018AP1887.rfd
by
clear
and
convincing evidence, that the person is both mentally ill and
dangerous to herself or others.2
Marathon Cnty. v. D.K., 2020
WI 8, ¶¶27-28, 390 Wis. 2d 50, 937 N.W.2d 901 (citing O'Connor
v. Donaldson, 422 U.S. 563, 576 (1975), and Addington, 441 U.S.
at 432-33).
As we recently held, the government must prove that
an individual is "current[ly] dangerousness"; "it is not enough
that
the
individual
was"
dangerous.
Portage
Cnty.
v.
J.W.K., 2019 WI 54, ¶24, 386 Wis. 2d 672, 927 N.W.2d 509.
There is no dispute that the Fourteenth Amendment
substantively protects the basic liberty of non-dangerous
individuals against the government's attempts to deprive them of
that liberty.
See O'Connor v. Donaldson, 422 U.S. 563, 575-76
(1975); Vitek v. Jones, 445 U.S. 480, 491–92 (1980).
There is
some debate, however, about whether it is the Fourteenth
Amendment's Due Process Clause or its Privileges or Immunities
Clause that prevents states from infringing on an individual's
inherent right to liberty. See, e.g., Planned Parenthood of Se.
Penn. v. Casey, 505 U.S. 833, 847-48 (1992) (explaining that the
Due Process Clause protects "a realm of personal liberty which
the government may not enter"); Winnebago Cnty. v. C.S., 2020
WI 33, ¶¶47-70, 391 Wis. 2d 35, 940 N.W.2d 875 (Rebecca Grassl
Bradley, J., dissenting) (concluding that "liberty interests may
be vindicated under the Privileges or Immunities Clause"); Josh
Blackman
&
Keeping
Ilya
Shapiro,
Pandora's
Box
Sealed:
Privileges or Immunities, the Constitution in 2020, and Properly
Extending the Right to Keep and Bear Arms to the States, 8 Geo.
J.L. & Pub. Pol'y 1, 64 (2010) ("The Privileges or Immunities
Clause is about individual liberty."). This academic debate has
no bearing on K.E.K.'s challenge.
After all, this court has
already held that, based on the United States Supreme Court's
"due process" jurisprudence, the government must prove current
dangerousness. See Marathon Cnty. v. D.K., 2020 WI 8, ¶¶26-27,
390 Wis. 2d 50, 937 N.W.2d 901 (citing O'Connor, 422 U.S.
at 576).
Support for this basic liberty may also be found in
the
Wisconsin
Constitution's
protection
of
the
people's
"inherent right[]" to "liberty." Wis. Const. art. I, § 1.
2
3
30a
No.
¶49
2018AP1887.rfd
These constitutional due process protections, however,
have not always been the law in Wisconsin, and vestiges of our
troubling history in this area remain.
Wisconsin
became
following
a
mental
the
epicenter
class-action
health
commitment
F. Supp. 1078.
There,
a
of
lawsuit
In the early 1970s,
civil
that
procedures.
three-judge
commitment
contested
See
federal
reform
Wisconsin's
Lessard,
panel
349
enjoined
Wisconsin's commitment laws because Alberta Lessard, like many
committed before her,
was denied a series of key procedural
protections:
adequate notice of the proceedings against her;
a
prompt
hearing,
probable-cause
despite
being
against
self-
detained;
the
ability
to
invoke
her
right
incrimination or object to hearsay evidence;
a
heightened
burden
of
proof
commensurate
with
the
deprivation of her liberty; and
her right to counsel.
Id. at 1090-1103.
Lessard's victory led to certain procedural
changes,
pre-Lessard
but
our
ghosts
continue
to
haunt
us.
Indeed, as of 2015, Wisconsin involuntarily commits its citizens
diagnosed with mental illnesses at a higher rate than any other
state.3
Although we presume that the State's current mental
Wisconsin involuntarily commits roughly 44 of every 1,000
persons diagnosed with a serious mental health disorder, far
exceeding the average rate of other states (9 per 1,000).
Substance Abuse & Mental Health Servs. Admin., Civil Commitment
and the Mental Health Care Continuum:
Historical Trends and
Principles for Law and Practice 12 (2019).
3
4
31a
No.
2018AP1887.rfd
health commitment scheme is constitutional, we cannot ignore its
history to the contrary.
See Winnebago Cnty. v. C.S., 2020
WI 33, ¶14, 391 Wis. 2d 35, 940 N.W.2d 875.
¶50
Today,
mental
health
commitments
begin
with
a
six-
month initial commitment once the criteria set forth in Wis.
Stat. § 51.20(1)(a) are met.
See § 51.20(13)(g)1. (limiting the
initial commitment period to not more than six months).
As
discussed above, the government must show that the person is
both
mentally
ill
and
currently
D.K., 390 Wis. 2d 50, ¶27.
§ 51.20(1)(a);
dangerous.
The government may prove the latter
requirement if it can show, by clear and convincing evidence,
that there is a substantial probability that, based on recent
acts
or
herself
omissions,
or
the
others
§ 51.20(1)(a)2.a.-d.
person
will
cause
at
least
one
in
physical
of
harm
four
to
ways.
A fifth standard allows the government to
prove current dangerousness by showing a substantial probability
that, without treatment, an individual who has demonstrated an
"inability to make informed treatment decisions" will "further
decompensat[e]" to the extent that she cannot independently care
for herself, "as demonstrated by both the individual's treatment
history
and
his
or
her
recent
acts
or
omissions."
§ 51.20(1)(a)2.e.; State v. Dennis H., 2002 WI 104, ¶¶20-24, 255
Wis. 2d 359, 647 N.W.2d 851.
¶51
After
the
initial
six-month
commitment
period,
the
government may extend the commitment for up to one year at a
time.
See § 51.20(13)(g)1., 3.
government
must
again
At each extension hearing, the
demonstrate
5
32a
both
mental
illness
and
No.
current
dangerousness.
§ 51.20(13)(g)3.;
2018AP1887.rfd
J.W.K.,
386
Wis. 2d 672, ¶21.
The evidence of current dangerousness must be
"independent[]"
that
proceeding.
of
introduced
at
the
initial
J.W.K., 386 Wis. 2d 672, ¶¶21, 24.
commitment
Just as in the
initial commitment proceedings, § 51.20(1)(a)2. governs the type
of
evidence
the
government
can
use
to
show
current
provides
an
"alternative"
provision,
the
dangerousness.
¶52
But
§ 51.20(1)(am)
evidentiary
path.
"satisf[y]"
the
Under
that
respective
government
recent-act-or-omission
may
requirements
in each of the five dangerousness standards "by a showing that
there
is
a
substantial
likelihood,
based
on
the
subject
individual's treatment record, that the individual would be a
proper
subject
for
(Emphases added.)
permits
the
if
commitment
treatment
were
withdrawn."
Thus, by its plain language, § 51.20(1)(am)
government
to
extend
an
individual's
commitment
based not upon evidence that an individual is dangerous but upon
a prediction that she might become dangerous in one of the ways
defined in § 51.20(1)(a)2.
¶53
That
is
circuit
court
extended
standard
of
the
route
K.E.K's
dangerousness,
§ 51.20(1)(am)
Waupaca
County
took
here.
The
commitment
under
the
fifth
§ 51.20(1)(a)2.e.,
"alternative,"
basing
its
predictions of two mental health professionals.
by
way
order
of
the
on
the
Those witnesses
forecasted that K.E.K., based on her treatment record, would
become a proper subject for commitment under the fifth standard
if treatment were withdrawn.
6
33a
No.
¶54
this
2018AP1887.rfd
K.E.K. argues that extending her commitment based on
"alternative"
to
evidence
of
recent
acts
or
omissions
contravenes her Fourteenth Amendment rights in that it allows
the government to extend her commitment without providing any
evidence that she is currently dangerous.
challenge,
the
question,
instead
misinterpreting
and
careful
constitutional
analysis
J.W.K.
A
majority
opinion
sidesteps
In rejecting her
the
constitutional
improperly
relying
on
§ 51.20(1)(am),
of
however, reveals that it is facially unconstitutional.
II
¶55
The
majority
"authoritatively
§ 51.20(1)(am)
opinion
determined"
is
errs
in
its
premise
in
J.W.K.
that
constitutional.
See
majority
that
Wis.
we
Stat.
op.,
¶26.
There, however, we interpreted the language of § 51.20(1)(am)
only
to
determine
whether
J.W.K.'s
sufficiency of the evidence was moot.
appeal
challenging
the
We made no pronouncement
either way about its constitutionality——an unsurprising result
given that J.W.K. did not raise a constitutional challenge.
¶56
To
the
extent
that
J.W.K.
addresses
current
dangerousness, its reasoning undercuts the majority's conclusion
rather
than
supports
it.
The
majority
claims
that
§ 51.20(1)(am) is constitutional because, per J.W.K., it allows
the government to use "alternative" evidence to show that an
individual "may still be dangerous despite the absence of recent
acts,
omissions,
or
behaviors
exhibiting
Id., ¶36 (quoting J.W.K., 386 Wis. 2d 672, ¶24).
majority
opinion
accepts
as
"current"
7
34a
the
dangerousness."
That is, the
dangerous
behavior
No.
that
led
to
the
individual's
initial
2018AP1887.rfd
commitment,
based
on
conjecture that this same behavior might manifest itself again
if
treatment
argument,
is
withdrawn.
explaining
that
J.W.K.
But
the
rejected
that
may
extend
government
not
very
an
individual's commitment by resting solely on the evidence used
to initially commit her.
J.W.K., 386 Wis. 2d 672, ¶24 ("It is
not enough that the individual was at one point a proper subject
for commitment.").
Simply put, J.W.K. provides no basis for a
constitutional analysis of § 51.20(1)(am); it instead bolsters
K.E.K.'s
position
that
supported
her
initial
whatever
evidence
commitment
of
dangerousness
cannot
satisfy
the
constitutional requirement that the government demonstrate she
is
dangerous
right
now.
The
majority
opinion's
mistaken
reliance on and misinterpretation of J.W.K. stunts any actual
constitutional analysis of § 51.20(1)(am).
¶57
A
proper
§ 51.20(1)(am)
examination
reveals
that
it
of
the
plain
is
facially
language
of
unconstitutional
because it allows the government to involuntarily commit someone
who
is
not
substitutes
currently
the
§ 51.20(1)(a)2.
with
dangerous.
Section
recent-act-or-omission
a
that
showing
there
51.20(1)(am)
requirements
is
a
of
"substantial
likelihood," based on the subject individual's treatment record,
that the individual "would be a proper subject for commitment if
treatment were withdrawn."
be"
in
tandem
conditional."
hypothetical
with
an
(Emphases added.)
clause
"if"
forms
The use of "would
a
"future
unreal
As the label implies, such sentences deal with
futures
based
on
some
8
35a
condition
not
currently
No.
present.
2018AP1887.rfd
This phrasing redefines "is dangerous" to mean "might
be dangerous if some future conditions are met."
¶58
The
problem
with
relying
on
the
future
conditional
language in § 51.20(1)(am) is compounded by the fact that the
five standards of dangerousness are already predictions about
future
behavior.
probability"
that
Each
standard
harm
will
is
based
occur.
on
What
a
"substantial
saves
the
five
standards from being unconstitutional in the initial commitment
context
is
omission
that
that
each
evinces
requires
evidence
of
dangerousness.
a
See
recent
act
or
§ 51.20(1)(a)2.
Section 51.20(a)(am) dispenses entirely with that recent-act-oromission requirement, allowing it to be "satisfied" with future
speculation,
thus
layering
uncertainty
on
top
of
uncertainty
while never proving that an individual is in fact dangerous
right now.
¶59
Section 51.20(1)(am)'s
reliance
on
an
individual's
treatment record likewise does not establish proof of current
dangerousness.
An
individual's
treatment
record
will
always
include some past event of dangerous behavior; otherwise the
individual could not have been committed in the first place.
But in the commitment extension context, if the government's
only evidence of dangerousness is that which led to the initial
commitment, then it has no evidence of current dangerousness.
See
J.W.K.,
current
386
Wis. 2d 672,
dangerousness,
committed.
J.W.K.,
an
¶24.
individual
386
And
without
cannot
be
Wis. 2d 672, ¶21;
Louisiana, 504 U.S. 71, 77-78 (1992).
9
36a
evidence
of
involuntarily
Foucha
v.
No.
¶60
K.E.K.'s
commitment
extension
2018AP1887.rfd
illustrates
just
how
divorced predictions about future dangerousness are from current
dangerousness.
Both
the
County's
psychiatrist,
Dr.
Marshall
Bales, and K.E.K.'s behavioral health case manager, Heather Van
Kooy, confirmed that K.E.K was stable in an outpatient facility.
They explained that K.E.K. was responding to treatment, that she
had been taking her medication, and that she had committed no
recent violent or threatening acts.
Dr. Bales pointedly stated
that K.E.K. had "not been dangerous over the last number of
months."
Although he noted that K.E.K. lacked insight into her
mental illness and that she still talked and giggled to herself,
he
acknowledged
that
dangerous behaviors.
those
symptoms
are
not
necessarily
Ms. Van Kooy agreed that K.E.K.'s symptoms
had not manifested in any dangerous behaviors or threats of harm
to
herself
or
others.
Far
from
showing
that
K.E.K.
was
currently dangerous, Dr. Bales's and Ms. Van Kooy's testimony
exemplify
the
disconnect
between
predictions
about
future
dangerousness permitted under § 51.20(1)(am) and actual evidence
of current dangerousness required by the Constitution and our
precedent.
¶61
opinion
Failing to grapple with that disconnect, the majority
offers
upholding
Wis.
two
last-ditch,
Stat.
but
unavailing,
§ 51.20(1)(am).
arguments
First,
it
for
upholds
§ 51.20(1)(am) on the grounds that it "give[s] counties a more
realistic
op., ¶36.
basis
by
More
which
to
prove
realistic
dangerousness."
than
what
is
Majority
unclear.
Notwithstanding, there is nothing unrealistic about a standard
10
37a
No.
2018AP1887.rfd
of proof that requires evidence of current dangerous behavior to
show that someone is currently dangerous.
If the government has
no such evidence, perhaps the committed individual is, in fact,
not currently dangerous.
¶62
defense
This
To that, the majority opinion responds with its second
of
§ 51.20(1)(am):
justification
posits
the
"revolving
that
without
door"
the
phenomena.
"alternative"
evidence permitted under § 51.20(1)(am), committed individuals
will enter a "vicious circle of treatment, release, overt act,
recommitment."
Wis. 2d 347,
Majority op., ¶36 (quoting State v. W.R.B., 140
351,
411
N.W.2d 142
(Ct.
App.
1987)).
Setting
aside the fact that this judicially crafted rationale lacks any
basis in the text or legislative history of § 51.20(1)(am), it
does
nothing
impermissibly
assumes
the
individual
to
address
redefines
truth
is
of
not
the
fact
"currently
the
§ 51.20(1)(am)
that
dangerous."
constitutional
Instead,
it
violation——that
the
dangerous——while
presently
excusing
that
violation because the previously committed individual may meet
the commitment requirements again.
¶63
I
understand,
to
a
point,
the
policy
underlying this revolving door reality for some.
concerns
I recognize
that an individual released from a mental health commitment may
at some point cease treatment and again become a proper subject
for
commitment.
I
also
recognize
that
simply
extending
an
individual's commitment may be more expedient than having to
start
the
commitment
process
anew
condition significantly deteriorate.
11
38a
should
an
individual's
No.
¶64
The
Constitution,
however,
intentions nor expediency.
when
faced
practices
that
ultimately
with
116
neither
good
and
efficient
violation
of
well-intentioned
amount
individual's fundamental liberty.
200,
to
Its protections are all the more
important
Wis. 193,
yields
2018AP1887.rfd
N.W. 885
to
a
an
See Bonnett v. Vallier, 136
(1908)
("Good
intentions
in
the
passage of a law or a praiseworthy end sought to be attained
thereby
cannot
save
the
enactment
if
it
transcends
in
the
judgment of the court the limitations which the Constitution has
placed upon legislative power."); Kiley v. Chi., Milwaukee & St.
Paul
Ry.
Co.,
138
Wis. 215,
256,
119
N.W. 309
(1909)
("The
Constitution was made to guard the people against the dangers of
good intentions as well as bad intentions and mistakes.
The
former may excuse a void enactment, but never justify it.").
Therefore, as concerning as the revolving door phenomenon may
be, it cannot justify depriving individuals of their liberty
without due process.
III
¶65
against
The
her
government
will
only
may
if
constitutionally
she
is
mentally
commit
ill
and
someone
currently
dangerous.
By its plain terms, Wis. Stat. § 51.20(1)(am) swaps
the
requirement
for
uncertain
predictions
latter
conduct
and
dangerousness.
evidence
of
an
individual's
about
her
potential
past
future
Under no set of facts, however, can past records
or speculative predictions, on their own, demonstrate current
dangerousness.
Accordingly,
I
12
39a
conclude
that
§ 51.20(1)(am)
No.
2018AP1887.rfd
facially violates the Fourteenth Amendment to the United States
Constitution.
¶66
I therefore respectfully dissent.
¶67
I am authorized to state that Justice JILL J. KAROFSKY
joins this dissent.
13
40a
COURT OF APPEALS
DECISION
DATED AND FILED
NOTICE
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 26, 2019
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Sheila T. Reiff
Clerk of Court of Appeals
Appeal No.
Cir. Ct. No. 2017ME44
2018AP1887
STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT IV
IN THE MATTER OF THE MENTAL COMMITMENT OF K. E. K.:
WAUPACA COUNTY,
PETITIONER-RESPONDENT,
V.
K. E. K.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Waupaca County:
VICKI L. CLUSSMAN, Judge. Affirmed.
Before Fitzpatrick, P.J., Blanchard, and Graham, JJ.
APPENDIX B
41a
No. 2018AP1887
¶1
BLANCHARD, J.1
K.E.K. appeals two decisions of the circuit
court: one to extend K.E.K.’s involuntary commitment and the other requiring
involuntary medication and treatment. In challenging the order extending her
commitment, K.E.K. argues that (1) the circuit court lacked competency to order
involuntary recommitment because Waupaca County filed the petition after the
time required by WIS. STAT. § 51.20(13)(g)2r. and (2) the recommitment
paragraph, § 51.20(1)(am), is unconstitutional, both facially and as applied to
K.E.K., on both vagueness and due process grounds.
Regarding the ruling
requiring involuntary medication and treatment, K.E.K. argues that the circuit
court erred by failing to identify supporting statutory grounds and that the
evidence is insufficient. We reject all of K.E.K.’s arguments and affirm.
Background
¶2
On November 22, 2017, the County filed an initial petition for
examination seeking to commit K.E.K. under WIS. STAT. § 51.20(1)(a), more
specifically under § 51.20(1)(a)2.e., known as the “fifth standard” of
dangerousness. See State v. Dennis H., 2002 WI 104, ¶¶14, 33, 255 Wis. 2d 359,
647 N.W.2d 851 (fifth standard permits commitment of “mentally ill persons
whose mental illness renders them incapable of making informed medication
decisions and makes it substantially probable that, without treatment, disability or
deterioration will result”). On December 8, 2017, following a jury trial, the circuit
court entered an order committing K.E.K. for six months. On May 22, 2018, the
1
This appeal was converted from a one-judge appeal to a three-judge appeal under WIS.
STAT. RULE 809.41(3) (2017-18). All references to the Wisconsin Statutes are to the 2017-18
version unless otherwise noted.
2
42a
No. 2018AP1887
County filed an evaluation, recommendation, and petition for recommitment
seeking to extend K.E.K.’s commitment for an additional twelve months.2
¶3
K.E.K. filed a motion to dismiss the County’s petition for
recommitment on the ground that the circuit court lacked competency to proceed,
because the County violated a statutory requirement under WIS. STAT.
§ 51.20(13)(g)2r. Specifically, the County failed to follow the requirement that
petitions for recommitment must be filed at least 21 days before the expiration of
the initial commitment. See § 51.20(13)(g)2r. The County conceded that it had
filed only 17 days prior to expiration of K.E.K.’s original commitment order. The
circuit court denied K.E.K.’s timeliness motion.
¶4
Separately, K.E.K. argued that, in order to satisfy due process
requirements for recommitment, the County was required to establish that K.E.K.
had engaged in a recent act supporting a new or continuing finding of
dangerousness.
K.E.K. further contended that WIS. STAT. § 51.20(1)(am) is
unconstitutionally vague because it fails to define a key phrase contained within
that paragraph, namely, “would be a proper subject for commitment if treatment
were withdrawn,” and there is no definition of that phrase in statutes or in case
law. The circuit court rejected these arguments, concluding that the County was
not required to present evidence of a recent act supporting a finding of
dangerousness to meet its burden to establish that recommitment was appropriate.
The court also at least implicitly concluded that § 51.20(1)(am) is not
unconstitutionally vague.
WISCONSIN STAT. § 51.20, as well as case law, uses the terms “recommitment” and
“extension of a commitment” interchangeably. See Portage Cty. v. J.W.K., 2019 WI 54, ¶1 n.1,
386 Wis. 2d 672, 927 N.W.2d 509. We will generally use “recommitment.”
2
3
43a
No. 2018AP1887
¶5
The County’s request for recommitment was tried to the court. We
recount trial testimony as necessary to discussion below.
¶6
The circuit court found that K.E.K. was mentally ill and that there
was a substantial likelihood that she would be a proper subject for commitment if
treatment were withdrawn.
The court issued an order extending K.E.K.’s
involuntary commitment for the maximum period of twelve months. In addition,
the court ordered involuntary medication and treatment during the period of
recommitment. K.E.K. now appeals.
Discussion
¶7
We begin by addressing K.E.K.’s statutory and constitutional
arguments regarding the recommitment order. After that, we address K.E.K.’s
argument that there was insufficient evidence to support the court’s involuntary
treatment and medication order.3
Given the timing of this decision, K.E.K.’s appeal of the recommitment and medication
and treatment orders appears to be moot. See J.W.K., 386 Wis. 2d 672, ¶14 (“An appeal of an
expired commitment order is moot.”). We may consider moot issues if they fall within
exceptions to the rule that moot appeals are generally dismissed. See id., ¶29 (listing several
mootness exceptions including, for example, “‘the constitutionality of a statute,’” and “an issue
‘capable and likely of repetition and yet evades review because the appellate process usually
cannot be completed and frequently cannot even be undertaken within a time that would result in
a practical effect upon the parties.’”) (alterations and quoted source omitted); see also Outagamie
Cty. v. Melanie L., 2013 WI 67, ¶80, 349 Wis. 2d 148, 833 N.W.2d 607 (addressing moot appeal
of involuntary medication and treatment order based on multiple exceptions). The parties do not
address the issue of mootness or the exceptions to dismissing moot appeals. We conclude that
each of K.E.K.’s arguments sufficiently implicate one or more of the exceptions to mootness to
warrant addressing her arguments on the merits.
3
4
44a
No. 2018AP1887
I. The Recommitment Order
A. Whether the Circuit Court Lacked Competency
¶8
Our resolution of K.E.K.’s argument that the circuit court lacked
competency turns on the proper interpretation of WIS. STAT. § 51.20(13)(g)2r.
The construction of a statute is a question of law that appellate courts review
without deference to the circuit court. DeMars v. LaPour, 123 Wis. 2d 366, 370,
366 N.W.2d 891 (1985). Courts first determine whether the statutory language
has plain meaning. See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. In addition, “statutory language is
interpreted in the context in which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.”
Id., ¶46.
“Statutory
language is read where possible to give reasonable effect to every word, in order
to avoid surplusage.” Id.
¶9
WISCONSIN STAT. § 51.20 governs relatively short term involuntary
commitments and recommitments. Fond du Lac Cty. v. Helen E.F., 2012 WI 50,
¶29, 340 Wis. 2d 500, 814 N.W.2d 179 (“[WIS. STAT.] ch. 51 is used for short
term treatment and rehabilitation intended to culminate with re-integration of the
committed individual into society,” as opposed to WIS. STAT. ch. 55, which
governs long-term care).
¶10
When a governmental entity (here, the County) seeks the
recommitment of an individual already committed pursuant to WIS. STAT. ch. 51,
the government must file an “evaluation ... and ... recommendation” at least 21
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days before the expiration of the previously imposed commitment.4 See WIS.
STAT. § 51.20(13)(g)2r. Here, it is undisputed that, under this 21-day rule, the
County filed its recommitment petition after the time set forth in the statute.
¶11
K.E.K. argues that the County’s failure to meet the 21-day
requirement deprived the circuit court of “competency” and, therefore, the
recommitment order must be vacated. Specifically, K.E.K. argues that when a
petitioner violates the mandatory directive that it “shall file” a recommitment
petition “[t]wenty-one days prior to expiration of the period of commitment”
found in WIS. STAT. § 51.20(13)(g)2r., this deprives the circuit court of
competency to address the recommitment petition. The dispute here centers on the
subdivision’s later directive that “[a] failure ... to file an evaluation and
recommendation under this subdivision does not affect the jurisdiction of the court
over a petition for recommitment.” The issue is whether this directive preserves
court jurisdiction, but not court competency. See § 51.20(13)(g)2r. According to
K.E.K., because this directive pertains to jurisdiction, it has no effect on
competency. K.E.K. points out that cases such as City of Eau Claire v. Booth,
2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, make clear that “jurisdiction” and
“competency” are distinct concepts.
¶12
The County argues that the “jurisdiction” language in WIS. STAT.
§ 51.20(13)(g)2r. would be rendered meaningless by K.E.K.’s interpretation.
According to the County, it would make no sense for the legislature to include
There appears to be no dispute that the “evaluation ... and ... recommendation” referred
to in WIS. STAT. § 51.20(13)(g)2r. may also be properly referred to as a “recommitment petition.”
See § 51.20(13)(g)2r. (using the phrase “petition for recommitment” as an apparent substitute for
the somewhat cumbersome phrase “an evaluation of the individual and the recommendation of
the department or county department regarding the individual’s recommitment”).
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language preserving a court’s jurisdiction if a late filing would cause the court to
lose competency to act. That is, we understand the County to argue that K.E.K.’s
interpretation is absurd, because the preservation of jurisdiction has no meaning if
a court were to lose competency to do anything pursuant to that preserved
jurisdiction.
¶13
In our view, K.E.K.’s argument assumes that the legislature’s use of
the term “jurisdiction” is consistent with the case law distinction between
“jurisdiction” and “competency.” As we now explain, we conclude that the only
reasonable reading of “does not affect the jurisdiction of the court” is that courts
retain competency to exercise jurisdiction. As a result, a petitioner’s failure to
comply with the 21-day filing time limit does not affect the court’s competency to
exercise jurisdiction.
¶14
K.E.K. is correct that precedent such as Booth explains that
jurisdiction is distinct from competency.
However, Booth also explains that
subject matter jurisdiction is conferred by the Wisconsin Constitution and may not
be curtailed by the legislature. The legislature may curtail the courts’ competency
to exercise jurisdiction in defined circumstances:
Article VII, Section 8 of the Wisconsin Constitution
provides, in pertinent part: “Except as otherwise provided
by law, the circuit court shall have original jurisdiction in
all matters civil and criminal within this state ....” Subject
matter jurisdiction, established by this section of our
constitution, “refers to the power of a court to decide
certain types of actions.” Because this power is granted to
circuit courts by our constitution, it cannot be “curtailed by
state statute.” However, “a circuit court’s ability to
exercise the subject matter jurisdiction vested in it by the
constitution may be affected by noncompliance with
statutory requirements pertaining to the invocation of that
jurisdiction in individual cases.” Noncompliance with
statutory mandates affects a court’s competency and “a
court’s ‘competency,’ as the term is understood in
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Wisconsin, is not jurisdictional at all, but instead, is defined
as ‘the power of a court to exercise its subject matter
jurisdiction’ in a particular case.”
Booth, 370 Wis. 2d 595, ¶7 (emphasis added; citations omitted). Thus, subject
matter jurisdiction is conferred on our courts by our constitution and our
legislature is powerless to confer or restrict such jurisdiction. It follows that, when
the legislature provides that a petitioner’s failure to observe the 21-day window to
file “does not affect the jurisdiction of the court,” it could not mean to address
whether the circuit court does or does not have jurisdiction.5
¶15
For these reasons, the only reasonable reading of “does not affect the
jurisdiction of the court” is that a failure to comply with the 21-day filing time
limit does not affect a court’s competency to exercise jurisdiction. Stated in the
words of Booth, “[n]oncompliance with statutory mandates affects a court’s
competency” to “exercise the subject matter jurisdiction vested in [the court] by
the constitution.” Id.
¶16
Notably, although K.E.K. accurately describes the difference
between jurisdiction and competency, she does not provide any alternative
interpretation of “does not affect the jurisdiction of the court.” If, as K.E.K.
contends, the phrase solely implicates jurisdiction, and if, as Booth explains, the
legislature is powerless to confer or restrict jurisdiction, what else could the phrase
mean? K.E.K. does not provide an answer, and we discern none.
It appears that the parties to agree that the phrase “jurisdiction of the court” in WIS.
STAT. § 51.20(13)(g)2r. refers to subject matter jurisdiction of the court. K.E.K. acknowledges as
much when she references subject matter jurisdiction while relying on a paragraph in Booth that
discusses subject matter jurisdiction and competency. See City of Eau Claire v. Booth, 2016 WI
65, ¶7, 370 Wis. 2d 595, 882 N.W.2d 738.
5
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¶17
Accordingly, we agree with the circuit court that WIS. STAT.
§ 51.20(13)(g)2r. directs that a petitioner’s failure to comply with the 21-day filing
time limit does not affect a court’s competency to exercise jurisdiction and,
therefore, the circuit court here did not lose competency when the County filed the
K.E.K. recommitment petition fewer than 21 days before expiration of the initial
commitment.
B. Facial Constitutional Challenges
¶18
K.E.K. argues that part of the recommitment criteria in WIS. STAT.
ch. 51 is unconstitutional because it violates substantive due process and is void
for vagueness. The arguments hinge, or largely hinge, on the proposition that a
portion of WIS. STAT. § 51.20(1)(am), addressing recommitments, is unclear. We
disagree based on the following statutory interpretation discussion.
After
clarifying the meaning of the disputed language, we return to K.E.K.’s
constitutional arguments.
1. The Meaning Of The Recommitment Subsection
¶19
K.E.K. argues that one part of the criteria found in WIS. STAT.
§ 51.20(1)(am) for the recommitment of an individual is hopelessly unclear. This
is the criterion that “there is a substantial likelihood, based on the subject
individual’s treatment record, that the individual would be a proper subject for
commitment if treatment were withdrawn.” We put that phrase in context, and
then explain why we disagree with K.E.K.’s arguments.
¶20
The recommitment paragraph, WIS. STAT. § 51.20(1)(am), must be
read together with the initial commitment paragraph, § 51.20(1)(a). Under WIS.
STAT. ch. 51, a court may order an initial commitment if an individual is:
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(1) mentally ill (required by § 51.20(1)(a)1.),6
(2) a proper subject for treatment (also required by § 51.20(1)(a)1.),
and
(3) dangerous under one of the five alternative dangerousness
standards (set forth in five subdivision paragraphs,
§ 51.20(1)(a)2.a.-e.).
See § 51.20(1)(a); WIS JI—CIVIL 7050. In evaluating the third prong of this test,
each of the five dangerousness standards include a requirement of a recent act, for
example, issuing threats or attempting suicide. See § 51.20(1)(a)2.a.-e. (example
from subd. para. a.).
¶21
Turning to recommitment, before a committed individual whose
initial commitment has not yet expired may be recommitted, the court must find
that the same standards are met. See Portage Cty. v. J.W.K., 2019 WI 54, ¶18,
386 Wis. 2d 672, 927 N.W.2d 509 (a petitioner seeking recommitment must
“prove the same elements by clear and convincing evidence: (1) the individual is
mentally ill and a proper subject for treatment, and (2) the individual is
dangerous.”) (citing WIS. STAT. § 51.20(1)(a), (am)). The only material difference
between initial commitment and recommitment in this context is that, if the
individual has been treated for a mental illness as the result of a § 51.20(1)
commitment, meeting the third prong of the test no longer necessarily requires
proof of a recent act and, instead, may be satisfied by a showing “that there is a
substantial likelihood, based on the subject individual’s treatment record, that the
Following the parties’ lead, we use “mentally ill” as shorthand for “mentally ill,
developmentally disabled, or drug dependent.” See WIS. STAT. § 51.20(1)(am). We note that, at
least in some case law, what we now list as prongs one and two of the commitment test are
described as a single “element.” See e.g., J.W.K., 386 Wis. 2d 672, ¶18, (“(1) the individual is
mentally ill and a proper subject for treatment, and (2) the individual is dangerous”).
6
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individual would be a proper subject for commitment if treatment were
withdrawn.”
Sec. 51.20(1)(am).
This is the language that K.E.K. argues is
unclear.
¶22
K.E.K.’s argument fails, because this language means the following:
a petitioner seeking recommitment may, as an alternative to establishing one of the
five grounds for dangerousness through recent acts, establish one of those grounds
by proving a “substantial likelihood” that, if current “treatment were withdrawn,”
the “individual would be a proper subject for commitment” under the test
applicable to initial commitments. See J.W.K., 386 Wis. 2d 672, ¶¶18-19, 23-24
(describing WIS. STAT. § 51.20(1)(am) as an alternate evidentiary path to establish
a substantial likelihood that behaviors and acts manifesting dangerousness would
be exhibited if treatment were withdrawn). This is true for the following reasons.
¶23
First, it is undisputed, and not subject to reasonable dispute, that the
phrase “the individual would be a proper subject for commitment” in WIS. STAT.
§ 51.20(1)(am) is a reference to an initial commitment—that is, the individual up
for potential recommitment could be properly committed a first time. We cannot
discern what other “commitment” § 51.20(1)(am) could be referring to. Thus, the
requirement that an individual “be a proper subject for commitment” for
recommitment purposes means that, if treatment were withdrawn, the individual
would be a proper subject for commitment under the test for an initial commitment
described above: mentally ill, a proper subject for treatment, and dangerous.
¶24
Second, language in WIS. STAT. § 51.20(1)(am) that we have not
quoted to this point further demonstrates that this provision is connected to each of
the five dangerousness standards described in subd. (1)(a)2. Specifically, the
language immediately preceding the disputed clause refers to each type of recent
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act evidence corresponding to each dangerousness standard in describing how
para. (1)(am) provides an alternative means to meet each of the five standards in
the recommitment context.7
¶25
Third, it is clear that the phrase in WIS. STAT. § 51.20(1)(am), “the
individual would be a proper subject for commitment,” means that recommitment
requires a finding that, if treatment were withdrawn, there is a substantial
probability that the individual would be dangerous under at least one of the five
alternative dangerousness standards in the initial commitment test.
This is
because, once more, there is no other reasonable reading of the language. K.E.K.
proposes two alternatives, but we conclude that neither is reasonable.
¶26
K.E.K. suggests that this phrase means that a petitioner “is relieved
of proving dangerousness at all.”
We disagree. The phrase has the evident
meaning that we have just explained. And, our supreme court has made clear that
WIS. STAT. § 51.20(1)(am) requires a finding of dangerousness in the
recommitment setting, just as § 51.20(1)(a) requires a finding of dangerousness in
the initial commitment setting. See J.W.K., 386 Wis. 2d 672, ¶¶18-19, 23-24.
7
The following is a more complete quote:
[T]he requirements of a recent overt act, attempt or threat to act
under par. (a)2.a. or b., pattern of recent acts or omissions under
par. (a)2.c. or e., or recent behavior under par. (a)2.d. may be
satisfied by a showing that there is a substantial likelihood, based
on the subject individual’s treatment record, that the individual
would be a proper subject for commitment if treatment were
withdrawn.
WIS. STAT. § 51.20(1)(am).
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¶27
K.E.K. also suggests that this phrase requires proof supporting the
particular dangerousness standard—i.e., the same one of the five alternative
dangerousness standards—used for the individual’s initial commitment.
We
disagree. No language in WIS. STAT. § 51.20(1)(am) suggests such a limitation.
The paragraph says “a proper subject for commitment” and does not say anything
to the following effect: “a proper subject for commitment looking to the same
dangerousness standard relied on during the initial commitment.”
¶28
In sum, we agree with the brief filed by the attorney general, which
states that it “is clear from the plain language of” WIS. STAT. § 51.20(1) that “[t]o
prove dangerousness—either initially or on extension—the government must show
that the individual would [evince] one of the five standards of dangerousness if
treatment were withdrawn.”8
¶29
Our discussion above resolves K.E.K.’s primary argument regarding
the clarity of WIS. STAT. § 51.20(1)(am). Nonetheless, we choose to address
another supporting argument in K.E.K.’s brief-in-chief.
¶30
K.E.K. asserts that, “[i]n lieu of [the five alternate dangerousness
standards], WIS. STAT. § 51.20(1)(am) substitutes a lower, undefined threshold:
‘would be a proper subject for commitment if treatment were withdrawn.’” This
appears to misread § 51.20(1)(am) as fully displacing the dangerousness
requirements in § 51.20(1)(a)2. Rather, § 51.20(1)(am) has the effect of adding a
This quote from the attorney general’s brief shows that K.E.K. is wrong when she
contends that “[t]he Attorney General does not say whether, at the recommitment stage, the
County must prove that withdrawing treatment would cause K.E.K. to become dangerous under
the same standard used to justify her original commitment or simply any standard of
dangerousness.”
8
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means by which dangerousness may be established in the recommitment context
by modifying the type of proof that may be used to establish dangerousness under
the five standards. See J.W.K., 386 Wis. 2d 672, ¶19. That is not a lower or
undefined non-dangerousness standard.
It is a coherent way of defining
dangerousness when current treatment may be preventing dangerous behavior.
¶31
To sum up, K.E.K. fails to demonstrate that the disputed phrase in
the recommitment subsection is unclear. It has clear meaning. The party seeking
a recommitment order must prove a “substantial likelihood” that, if current
“treatment were withdrawn,” the “individual would be a proper subject for
commitment” under the test applicable to initial commitments.
We turn to
K.E.K.’s facial constitutional challenges.
2. Facial Constitutional Challenge: Void For Vagueness
¶32
Having rejected K.E.K.’s argument that the meaning of the
recommitment standard in WIS. STAT. § 51.20(1)(am) is unclear, it follows that her
void for vagueness argument must fail.
That is, we have established that
§ 51.20(1)(am) has a clear meaning and therefore it cannot be true that the statute
is “‘so obscure’” that individuals of “‘common intelligence must necessarily guess
at its meaning and differ as to its applicability.’” Dennis H., 255 Wis. 2d 359, ¶26
(quoting State v. Curiel, 227 Wis. 2d 389, 414-15, 597 N.W.2d 697 (1999)).
3. Facial Constitutional Challenge: Substantive Due Process
Requirement Of Dangerousness
¶33
K.E.K. and the attorney general agree that, to satisfy substantive due
process, a commitment or recommitment pursuant to WIS. STAT. § 51.20(1) must
be supported by a showing that the individual is both mentally ill and dangerous to
self or others. This agreement flows from several cases. See, e.g., Foucha v.
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Louisiana, 504 U.S. 71, 78 (1992) (“[K]eeping Foucha against his will in a mental
institution is improper absent a determination in civil commitment proceedings of
current mental illness and dangerousness.”); Dennis H., 255 Wis. 2d 359, ¶¶13,
31, 36 (the government does not have a legitimate interest in confining individuals
who are not mentally ill or who do not pose a danger to themselves or others).
¶34
However, citing O’Connor v. Donaldson, 422 U.S. 563, 575-76
(1975), K.E.K. contends that substantive due process specifically requires a
determination of current dangerousness to justify recommitment, as distinct from
a determination of a risk of future dangerousness or dangerousness that is
contingent on events that have not yet come to pass. K.E.K. argues that WIS.
STAT. § 51.20(1)(am) fails to require a determination of current dangerousness
because it “authorizes the involuntary commitment of a mentally ill person who is
not dangerous to himself or others” at the time of the court’s recommitment
decision.
¶35
We explain below why we conclude that K.E.K.’s argument fails
because it is based on the flawed proposition that current dangerousness can be
shown only by proof of recent behavior exhibiting dangerousness. In addition, her
argument is precluded by decisions of our supreme court. We first note our
agreement with two points that K.E.K. makes, and then turn to what we consider
flawed reasoning and to case law that forecloses her argument.
¶36
The County and the attorney general seem to suggest that K.E.K.’s
due process argument is rebutted by the explanation in case law that the purpose of
WIS. STAT. § 51.20(1)(am) is to avoid a “revolving door.” See State v. W.R.B.,
140 Wis. 2d 347, 411 N.W.2d 142 (Ct. App. 1987). We disagree. Briefly stated,
W.R.B. explains that the recommitment standard is needed to prevent a “revolving
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door” of commitment-release-commitment, etc., in light of the following potential
problem: it is often not possible in the recommitment context for the petitioner to
meet the dangerousness standards applicable to initial commitments precisely
because a currently committed individual is being successfully treated. See id. at
351-52. While the court clearly explains the nature of a potential revolving door
problem, we agree with K.E.K. that W.R.B.’s explanation does not address
whether the legislature adopted a constitutional means of addressing the potential
problem.
¶37
We also agree with K.E.K. that WIS. STAT. § 51.20(1)(am) does not
require proof of recent acts of dangerousness. However, we do not agree that this
means that the subsection does not require proof of current dangerousness.
¶38
Both
WIS.
STAT.
§ 51.20(1)(a)
(initial
commitments)
and
§ 51.20(1)(am) (recommitments) require a showing of current dangerousness,
although neither requires a showing that individuals actually harmed themselves or
others. Both paragraphs speak in terms of the presently existing probability or
likelihood that individuals will harm themselves or others in the future. See
§ 51.20(1)(a) (using “substantial probability” language); § 51.20(1)(am) (using
“substantial likelihood” language).9 Both paragraphs impose, in different ways,
the same burden on the government. The government must prove that there is a
substantial probability or a substantial likelihood that subject individuals will harm
themselves or others in the absence of treatment. In the words of the attorney
general, “whether the government uses a ‘recent overt act’ or the consequences of
9
K.E.K. does not suggest that there are any constitutional implications to the difference
between “substantial probability” and “substantial likelihood.”
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withdrawing treatment to prove dangerousness, the dangerousness being proved is
current dangerousness.”10
¶39
This rationale is consistent with statements by our supreme court.
The court has made clear that WIS. STAT. § 51.20(1)(am) “provides a different
avenue for proving dangerousness if the individual has been the subject of
treatment for mental illness immediately prior to” recommitment proceedings.
J.W.K., 386 Wis. 2d 672, ¶19. The court has further noted that “[e]ach extension
hearing requires proof of current dangerousness,” id., ¶24 (alteration in original),
whether proven through one of the five alternate standards of dangerousness using
recent acts or through § 51.20(1)(am), J.W.K., 386 Wis. 2d 672, ¶18. See also
Waukesha Cty. v. J.W.J., 2017 WI 57, ¶20, 375 Wis. 2d 542, 895 N.W.2d 783
(referring to WIS. STAT. § 51.20(1)(am) as a means of “satisfy[ing] the
‘dangerousness’ prong”).
¶40
K.E.K. further contends that her assertion that WIS. STAT.
§ 51.20(1)(am) does not require proof of current dangerousness is exemplified by
the purported holding of a one-judge opinion, Waukesha Cty. v. Kathleen R.H.,
2010AP2571-FT, unpublished slip op. (WI App Feb. 23, 2011). According to
K.E.K., this opinion “hold[s] that §51.20(1)(am) does not require proof that
withdrawing treatment would result in dangerousness.” We disagree. Nowhere
does the opinion say that WIS. STAT. § 51.20(1)(am) does not require such proof.
10
We observe that, even if a presently accurate showing of future dangerousness could be
said to be distinct from a showing of current dangerousness, the former showing may satisfy
substantive due process requirements under certain circumstances. See Kansas v. Hendricks, 521
U.S. 346, 358, 360 (1997) (upholding state law based on its requiring “a finding of future
dangerousness,” where that finding is “link[ed] … to the existence of a ‘mental abnormality’ or
‘personality disorder’ that makes it difficult, if not impossible, for the person to control his
dangerous behavior”).
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Rather, the opinion disposes of the notion that proof that the individual in that case
“would be a danger to herself or others if treatment were withdrawn” did not need
to be supplied by proof “apart from that contained in her treatment record.” See
Kathleen R.H., 2010AP2571-FT, ¶8.
C. As-Applied Challenges To Constitutionality
1. As-Applied: Void For Vagueness
¶41
K.E.K.’s brief-in-chief has a subsection purporting to demonstrate
that, even if WIS. STAT. § 51.20(1)(am) is not unconstitutionally vague on its face,
it is unconstitutionally vague as applied to her. However, we do not discern a
recognizable as-applied vagueness argument in this section of K.E.K.’s brief.
¶42
K.E.K. first points to testimony supporting the view that she would
not be dangerous to herself if she were not recommitted, and asks “[w]hat more
could [she] do to avoid endless recommitments?”
This appears to be an
illustration of K.E.K.’s facial vagueness argument, not an as-applied vagueness
argument. Moreover, we note that K.E.K.’s question misapprehends the pertinent
inquiry in the assessment of whether the standards governing recommitment
hearings are unconstitutionally vague. The issue is not whether K.E.K. is able to
avoid recommitment. Circumstances outside her control, including mental illness,
may make it impossible for her to avoid recommitment. The issue is whether
someone of normal intelligence would understand the circumstances under which
an individual is subject to recommitment under WIS. STAT. § 51.20(1)(am), when
read together with § 51.20(1)(a).
We have already addressed this issue and
determined that the statute is not unclear.
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¶43
K.E.K. next asserts that “separate actors [in this proceeding]
interpret[ed] [WIS. STAT.] § 51.20(1)(am) differently.” She describes what she
contends are statements demonstrating differing statutory interpretations made by
witnesses, the County’s attorney, and the circuit court. This again could be an
illustration of K.E.K.’s facial vagueness argument, not an as-applied vagueness
argument. Alternatively, such subjective views of what is required under WIS.
STAT. § 51.20(1)(am) might be a basis for arguing that the circuit court applied an
incorrect standard of law.11 However, the views do not support an as-applied
vagueness argument.
¶44
To the extent that K.E.K. points to these allegedly differing views to
support her argument that the meaning of WIS. STAT. § 51.20(1)(am) is unclear,
this adds nothing to her facial vagueness challenge.
¶45
For these reasons, we reject K.E.K.’s as-applied vagueness
argument.
2. As-Applied: Substantive Due Process Requirement Of Dangerousness
¶46
K.E.K. argues that, even if WIS. STAT. § 51.20(1)(am) does not
violate substantive due process on its face, the statute violates substantive due
process as applied to her. She provides three supporting arguments. We address
and reject each.
11
K.E.K. does not develop an argument, as an alternative to her challenges to the
constitutionality of WIS. STAT. § 51.20(1)(am), that the circuit court applied the incorrect
standards under the statute.
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¶47
First, K.E.K. argues that the County was required to prove that she
was currently dangerous, but that the circuit court found credible testimony
supporting the view that K.E.K. was not currently dangerous to herself or others.
We fail to understand in what sense this is an as-applied substantive due process
argument. Regardless, the argument is meritless. It is based on either of two
incorrect premises: that substantive due process cannot be satisfied by a current
finding of future or contingent dangerousness, or that such dangerousness cannot
be proven if there is no evidence of recent behavior showing dangerousness.
¶48
K.E.K. points to testimony and a finding by the circuit court here
that both address K.E.K.’s status while under treatment. However, as we have
explained, the recommitment dangerousness question is not necessarily whether
K.E.K. has engaged in recent acts suggesting dangerousness. Instead, the question
may be, as the circuit court stated here: “whether or not at this point, if treatment
was withdrawn, [K.E.K.] would then become a proper subject for a new
commitment” because she would then pose a danger to herself or others.
¶49
Second, K.E.K. argues that “at the recommitment trial the County
did not offer any evidence—in particular, any treatment records from her original
commitment—to prove that K.E.K. was ever dangerous to herself or others.” This
might be a sufficiency-of-the-evidence argument, but it is not an as-applied due
process argument.
¶50
Third, K.E.K. argues that WIS. STAT. § 51.20(1)(am) violates
substantive due process because it impermissibly “removes the ‘recent acts or
omissions’ requirement from the 5th [§ 51.20(1)(a)2.] standard.” Again, this is not
an as-applied argument because nothing about it is unique to the proceedings
involving K.E.K. Rather, as K.E.K. acknowledges, her third argument applies to
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No. 2018AP1887
“K.E.K. or anyone recommitted under the 5th standard.” As a facial challenge, we
have already resolved this topic.12
II. The Involuntary Treatment And Medication Order
¶51
Having addressed K.E.K.’s arguments about the recommitment
order, we now turn to the order for involuntary treatment and mediation. K.E.K.
makes three arguments under the heading “[t]here was insufficient evidence to
support the circuit court’s involuntary treatment order.” It does not appear to us
that all three are sufficiency-of-the-evidence-arguments. But, labeling aside, we
attempt to address these three arguments as best we understand them.
A. Alleged Failure Of Circuit Court To Identify The Subsection
¶52
K.E.K. argues that the circuit court, in imposing the involuntary
medication order, improperly failed to identify whether the court was relying on
WIS. STAT. § 51.61(1)(g)3m. (involuntary treatment for individual committed
under fifth standard of dangerousness) or § 51.61(1)(g)4. (involuntary treatment
for individual committed under a dangerousness standard other than the fifth
standard, or while a petition for such a commitment awaits final determination).
The court’s written order includes the findings that K.E.K. is mentally ill and that
she “is substantially incapable of applying an understanding of the advantages,
disadvantages and alternatives to [her] condition in order to make an informed
choice as to whether to accept or refuse psychotropic medications.”
We agree with K.E.K. that the County’s reliance on Terry R.H. v. Marathon Cty.,
No. 1994AP2097, unpublished slip op. (WI App Mar. 14, 1995), is improper. Although this
unpublished opinion is authored, it pre-dates July 1, 2009. Therefore, with exceptions that do not
apply here, it falls within the rule that such decisions may “not be cited in any court of this state
as precedent or authority.” See WIS. STAT. RULE 809.23(3).
12
21
61a
No. 2018AP1887
¶53
As an initial matter, we question whether K.E.K. preserved this issue
for appeal. We see no place in the record at which K.E.K.’s counsel argued that
something more was required than the findings in the standard order form used by
the circuit court. Accordingly, it appears that this challenge has been forfeited.
¶54
More importantly, K.E.K. fails to explain why it matters that the
court failed to specify whether it was relying on WIS. STAT. § 51.61(1)(g)3m. or
§ 51.61(1)(g)4. K.E.K.’s entire argument on this topic is as follows:
The circuit court’s first error in ordering involuntary
medication and treatment for K.E.K. came when it failed to
identify which statutory subsection it was applying—
§51.61(1)(g)3m or §51.61(1)(g)4. The two overlap, but
they are not identical. [Outagamie Cty v.] Melanie L.,
[2013 WI 67,] ¶¶61-63, [349 Wis. 2d 148, 833 N.W.2d
607.] Section 51.61(1)(g)3m, which incorporates the 5th
standard, imposes many more requirements and is thus
much stricter.
K.E.K. makes no attempt to explain how § 51.61 interacts with WIS. STAT.
§ 51.20(1) and she does not specify the “many more requirements” or why they
might matter. Accordingly, we reject the argument as undeveloped.
B. Alleged Failure Of Circuit Court To Identify Evidence
¶55
K.E.K. argues that the circuit court failed to identify the evidence
that it relied on or to give a reason for ordering involuntary medication. The
County notes that the court made some findings regarding K.E.K.’s medication
history following her initial commitment, but concedes that the court “did not go
into further detail concerning the statutory criteria concerning a medication order.”
However, the County relies on the well-established rule that “[w]hen a court does
not expressly make a finding that is necessary to its decision, we may assume it
made that finding, and we review the record to determine if the presumed finding
22
62a
No. 2018AP1887
is clearly erroneous.” Gittel v. Abram, 2002 WI App 113, ¶49, 255 Wis. 2d 767,
649 N.W.2d 661. K.E.K. does not develop a rebuttal to this point, conceding it.
C. Alleged Failure Of Circuit Court To Recognize The Absence Of Evidence
¶56
K.E.K. argues that the circuit court failed to “recognize the absence
of clear and convincing evidence to support an involuntary treatment order under
either [WIS. STAT. §] 51.61(1)(g)3m. or §51.61(1)(g)4.” We assume that K.E.K.
means to argue that the evidence is insufficient to satisfy either § 51.61(1)(g)3m.
or § 51.61(1)(g)4.b.
¶57
In part, K.E.K. asserts that the “County had to demonstrate, at a
minimum, [that she had a] history of noncompliance with taking prescribed
medication.” The only support K.E.K. provides for this requirement is to cite
Melanie L., 349 Wis. 2d 148, ¶¶75-78, 97. We find no such requirement in those
paragraphs.
Melanie L. does explain that an individual’s history of
noncompliance is relevant, see id. ¶75, but it does not say that proof of prior
noncompliance is required.
¶58
K.E.K. also asserts that the County was required to prove that she
had an “inability to apply the advantages and disadvantages of treatment to her
own condition.” We understand this to be an assertion that the evidence was
insufficient to support the circuit court’s written finding that K.E.K. was
“substantially incapable of applying an understanding of the advantages,
disadvantages and alternatives to ... her condition in order to make an informed
choice as to whether to accept or refuse psychotropic medications.”
¶59
This argument is undeveloped.
She does not summarize the
evidence most favorable to the circuit court’s finding and then explain why that
23
63a
No. 2018AP1887
evidence is insufficient.
Instead, in a few sentences unsupported by record
citations, K.E.K. briefly summarizes limited testimony that, viewed in isolation,
might support a finding that she did have the sort of understanding needed to make
an informed choice about medication. And even this limited discussion is flawed.
We give examples of both problems.
¶60
First, K.E.K. asserts that “Dr. Bales admitted that [K.E.K.] had at
least a ‘superficial understanding’ of the advantages, disadvantages and
alternatives to treatment.” (Emphasis added.) Although K.E.K. does not supply a
record citation with this assertion in her argument section, this appears to be a
reference to a factual summary in the background section of her brief in which she
cites to page 19 of the trial transcript. Looking there, we conclude that K.E.K.’s
assertion is misleading. Dr. Bales did not say that K.E.K. “had” a superficial
understanding.
Rather, he agreed that K.E.K. was able to “express” an
understanding—something very different. See Melanie L., 349 Wis. 2d 148,
¶¶53-55 (explaining distinction between a subject’s ability to express
understanding of recommended medication and subject’s ability to apply that
understanding to subject’s circumstances). More importantly, Dr. Bales went on
to opine that K.E.K. could not apply any understanding that she did have in order
to make an informed medication choice.
¶61
Second, K.E.K. asserts that “the County did not offer any admissible
evidence of K.E.K.’s noncompliance with prescribed medication.” (Emphasis
added.) K.E.K. does not explain her qualifier “admissible.” In particular, she
does not explain why the testimony of Dr. Bales that K.E.K. had a history of
noncompliance with her medications was inadmissible.
24
64a
No. 2018AP1887
¶62
Third, K.E.K.’s failure to come to grips with testimony that supports
the circuit court’s finding includes testimony by Dr. Bales that K.E.K. did not
understand her mental illness. This also includes testimony by K.E.K.’s case
manager, Heather Van Kooy. Van Kooy testified that, based on her monthly
interactions with K.E.K. and K.E.K.’s “history [with] our department,” K.E.K.
“will no longer take her medications, become more unstable, and potentially
[become] a danger to herself” if she no longer receives “the treatment and care that
she’s receiving currently.”
Conclusion
¶63
For these reasons, we affirm the circuit court.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
25
65a
STATE OF WISCONSIN, CIRCUIT COURT, WAUPACA
COUNTY
IN THE MATTER OF THE CONDITION OF
D Amended
FILED
Order of
D Commitment
Name of Subject
� Extension of Commitment
D Dismissal
06/04/1971
For Official Use
Case No. 17-ME-44
Date of Birth
,1
..lt4 - 6 2018
WliilPAcA COtlNT'i, WI • I
ADAHLE. REGfSTER IN PROBATE I
A hearing was held on (Date),"""J-=un=ea...6=-=2=0-"-l =-8 _____________
THE COURT FINDS:
1. Grounds for
D
D commitment
D extension of commitment
have not been established.
[8J 2. Grounds for
O commitment � extension of commitment have been established.
The subject is
a. � mentally ill.
D drug dependent.
D developmentally disabled.
b. dangerous because the subject evidences behavior within one or more of the standards under
§§51.20(1) or (1m). Wis. Stats. (except for proceedings under §51.20(1)(a)2.e., Wis. Stats.).
c. a proper subject for treatment.
County, Wisconsin.
d. � a resident of WAUPACA
D a nonresident of the state of Wisconsin.
an inmate of a Wisconsin state prison.
D
[gl 3. The dangerousness of the subject is likely to be controlled with appropriate medication administered on an
outpatient basis.
[gl 4.
The subject has been adjudicated pursuant to 18 USC 922(g)(4} as a "mental defectiVe" or committed to a
mental institution.
0 5. Other:-------------------------------- THE COURT ORDERS:
D 1. This matter is dismissed.
[gl 2. The subject is committed for =12�-- months from the date of this hearing to the care and custody of the
County Department established under
a.� WAUPACA
§§51.42 or51.437. Wisconsin Statutes.
b. D Department of Health Services.
The maximum level of treatment shall be
a. D a locked
Dan unlocked
inpatient facility.
The reception facility shall
Transportation to the facility shall be provided by
D the sheriff.
D Other:--------------------------
b. [81 outpatient with conditions. The conditions of outpatient commitment on the attached document are
incorporated into this order. A violation of any condition may result in the subject being taken into
custody by law enforcement for inpatient treatment.
be------------------------
ME-911, 02111 Order of Commitment/Extension of Comm�meotlDismissal
This form shall not be modified. It may be supplemented with additional material.
APPENDIX C
66a
58-1
I.
§51.20(13). Wisconsin Statutes
Order of Commitment/Extension of Commitment/Dismissal
Page 2 of 2
Case No. l 7-ME-44
l2<'J 3. 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 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.
D a. Any firearm owned by subject shall be seized by _____________________
The subject's firearms may be found at the following location(s): _______________
Any person residing at the/these locations is required to cooperate with law enforcement attempts to
seize firearms. Failure to cooperate may result in contempt sanctions.
D b. As an alternative to seizure, the following person is designated to store any firearm(s) until the firearm
restriction order has been canceled: - - - - - - - - - - - - - - - - - - - - - - - - c. The subject is informed of the requirements and penalties under §941.29, Wis. Stat. including
imprisonment for up to 10 years, a fine not to exceed $25,000 or both.
d. The court clerk shall notify the department of justice of the restriction unless the department has been
previously informed of a prohibition for this subject.
D 4. O t h e r : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THIS IS A FINAL ORDER FOR PURPOSES OF APPEAL.
DISTRIBUTION:
1. Original - Court
2. Subject
3. Attorney
4. Treatment Provider
5. Detention facility (if different)
Hon. Vicki L. Clussman
/
~
Name Printed or Typed
June L-r"::::2018
Date
ME-911, 02/11 Order of CommitmenVExtension of CommitmenUDismissal
§51.20(13), Wisconsin Statutes
This form shall not be modified. It may be supplemented with additional material.
Page 2 of 2
58-2
67a
1
STATE OF WISCONSIN : CIRCUIT COURT
2
BRANCH NO. II
3
FILE NO. 17-ME-44
COURT TRIAL
4
5
WAUPACA COUNTY
IN THE MATTER OF:
6
I I 1/f I!
ILJI O :l 2018
7
8
., f,l l: I'
E.�
9
10
BEFORE:
11
12
DATE:
'-I f:NDLr(
h11nt T, ,a1
------- -----..
sr vt·11
HONORABLE VICKI L. CLUSSMAN
Circuit Judge
JUNE 6, 2018
13
14
15
16
17
APPEARANCES:
DAVID G. BEEN, Assistant Corporation Counsel
Appearing on behalf of Waupaca County
KATE DRURY, State Public Defender
Appearing on behalf of Ms. KIIIIIIII, who
is appearing in person
18
19
20
21
22
23
24
25
Dana Amundson, RMR, CRR
Official Court Reporter
TRANSCRIPT OF PROCEEDINGS
1
APPENDIX D
68a
'·
1
INDEX
�.
�
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Page
CO URT'S RU LING --------------------------------------96
ARGUMENTS:
By Attorney Been----------------------------- 87/94
B y Attorney Drury ------------------- ------------88
WITNESSES:
DR. MARSHALL BALES
HEATHER VAN KOOY
COLLEEN BARRIBEAU
K
K
EXHIBITS:
1 2 3 4 5 -
DIRECT
, 12
37
58
77
CROSS
REDIRECT
RECROSS
41
63
82
54
56
20
IDENTIFIED
OFFERED
RECEIVED
22
24
33
43
65
33
44
33
44
16
17
18
19
20
21
22
23
24
25
84/86
TRANSCRIPT OF PROCEEDINGS
2
69a
1
being present for the testimony of the doctor, because it
2
was my intent to call him first.
3
ATTORNEY DRURY:
I don't.
She's -- the county is
4
allowed to designate a representative to sit at the table
5
and I understand that the -- Your Honor, may I go just off
6
the record?
THE COURT:
7
Yes.
(Discussion held off the record.)
8
ATTORNEY DRURY:
9
No, your Honor,
I think that
10
we -- I talked to my client -- we can go back on the record
11
and we're prepared to proceed with calling Dr. Bales first.
12
THE COURT:
13
ATTORNEY BEEN:
14
Okay.
County will call Dr. Marshall
Bales.
15
MA R S H A L L
BALES,
16
called as a witness herein, having been first duly sworn, was
17
examined and testified as follows:
18
DIRECT EXAMINATION:
19
BY ATTORNEY BEEN:
20
Q.
21
spell your last name for the record.
22
A.
Marshall Bales, B-A-L-E-S.
23
Q.
And Doctor, how are you currently employed?
24
A.
I'm a psychiatrist,
25
Appleton.
Dr. Bales, could you please state your full name and
I do work in an outpatient clinic in
And I work at Brown County Mental Health, and I do
12
70a
1
independent court evaluations.
2
Q.
3
of your education and training.
4
A.
5
School, Chicago Medical School residency, I'm board certified
6
in psychiatry, I have a Wisconsin license and have practiced
7
psychiatry full-time for 25 years.
8
Q.
9
present employment is with Outagamie County?
10
A.
Yes.
11
Q.
And doing independent evaluations, is that what you've
12
been doing for 25 years, or can you just briefly sununarize
13
your work history?
14
A.
15
And I've done both inpatient and outpatient psychiatry.
16
have been employed at Winnebago Mental Health Institute,
17
although I recently retired from there.
18
practiced inpatient or outpatient psychiatry full-time for a
19
long time.
20
Q.
21
you had regular opportunities to do evaluations for the
22
purpose of evaluating mental status?
23
A.
Countless times.
24
Q.
All right.
25
of how often you do such evaluations?
All right.
Yes.
And can you give the Court a brief sununary
Kansas University undergraduate and Medical
All right.
And have you -- you indicated that your
I worked in the Veteran's Administration for many years.
I
But basically I've
And in your present role, as well as past roles, have
And are you able to give a rough estimation
13
71a
1
A.
These kind of evaluations, or psychiatric evaluations?
2
Q.
Well, let me ask both.
3
proceedings, how often do you do evaluations?
4
A.
5
evaluations for about five years and I've done many hundreds
6
and hundreds.
7
and inpatient.
8
Q.
9
received specific training related to doing court
So for the purpose of court
I've done thousands now.
I've been doing these court
And I do the same thing on an outpatient basis
All right.
As part of that, are you -- have you
10
evaluations?
11
A.
12
a forensic psychiatrist, if that's what you mean.
13
Q.
14
training to that.
15
evaluations, are you asked on a regular basis to assess
16
dangerousness?
17
A.
18
all day long, whether inpatient, outpatient, for the court,
19
or for -- it's what I do.
20
Q.
All right.
21
A.
For years.
22
Not really.
Okay.
Yes.
I've learned through the years, but I'm not
I'm just curious what -- if there were specific
Specifically, as part of court
Whether for court evaluations or it's what I do
And --
ATTORNEY BEEN:
And I would just move the Court to
23
find Dr. Bales to be certified as an expert in the field of
24
psychiatry.
25
THE COURT:
Any objection, Attorney Drury?
14
72a
1
ATTORNEY DRURY:
2
THE COURT:
3
ATTORNEY DRURY:
We would oppose.
You oppose?
Has the county introduced
evidence of the CV or just the testimony?
4
5
ATTORNEY BEEN:
Just through testimony.
6
ATTORNEY DRURY:
So I mean, that would be my
And I'm sure the Court can make a decision on the
7
problem.
8
admissibility of that.
THE COURT:
9
I will find that Dr. Bales is an
expert in the area of psychiatry.
10
11
BY ATTORNEY BEEN:
12
Q.
13
have you had involvement with K
14
A.
Yes, one time.
15
Q.
And you had an opportunity to do a mental status
16
evaluation concerning�
17
A.
Yes.
18
Q.
And did you also have an opportunity to review records
19
and receive other information and observe her as part of your
20
evaluation?
21
A.
Yes.
22
Q.
Can you tell the Court what records you had available to
23
you to evaluate?
24
A.
25
Winnebago Mental Health Institute records.
Doctor, in your capacity, as a medical professional,
I reviewed the Evergreen records.
15
73a
I reviewed the some
I don't have
1
those with me right now.
2
detention document.
3
very supportive of her.
4
and discussed with them how she's been doing.
5
Q.
You also have had opportunities to have personal
6
observations of Itlllllllllllll as well?
7
A.
Yes.
8
Q.
And can you tell us how much time and what -- basically
9
how much time you spent with her?
10
A.
11
15 or so minutes was with the group home staff in reviewing
12
some of their notes with the group home staff.
13
least a half an hour that I spent with KIIIIIIII and she was
14
cooperative with that meeting.
15
Q.
16
review of the information received, are you able to give us
17
an opinion to a reasonable degree of medical certainty as to
18
her current diagnosis?
19
A.
Yes.
20
Q.
And what is your opinion?
21
A.
She suffers from schizophrenia, paranoid type.
22
Q.
All right.
23
of the records, do you believe that she is currently
24
treatable?
25
A.
But reviewed the prior emergency
I also spoke to I<lllllllll's mother, who is
I spoke also to the group home staff
I spent about 30 minutes with her, and another probably
All right.
But it was at
And as a result of your examination and your
And based on her diagnosis and your review
Yes.
16
74a
And can you surn,marize your, I guess, support of that
1
Q.
2
opinion?
3
A.
4
rehospitalized during this last number of months.
5
-- she has been doing pretty well at this Evergreen.
6
other than she talks to herself a lot, but she -- I can talk
7
about that some -- but she's had only one police contact.
8
I've not seen it either, but it was just minimal compared to
9
some of the past ones.
10
she's been maintained on an outpatient basis, and she has not
11
been dangerous over the last number of months, through any of
12
the records I've seen.
13
impressed with that she has responded to treatment at least
14
partially in, in my opinion.
15
ATTORNEY DRURY:
Yes.
Actually plain and simple, she has not been
She's had
And
So she's had less police contact,
To her credit, and I was really
Your Honor, I would move to
16
strike the reference to having police contact during the
17
pendency of the corn,mitment, because the county didn't
18
provide me with that confrontation.
19
THE COURT:
Any objection?
20
ATTORNEY BEEN:
For the purposes of today's
21
hearing, no.
I mean, I guess the other issue is there's
22
been a jury trial, there's been evidence received, and there
23
was prior testimony.
24
would be unaware of any prior contact.
25
of this hearing and the doctor's testimony, I don't object.
So it's not as if the fact-finder
17
75a
But for the purposes
THE COURT:
1
I will order that that reference be
stricken.
2
3
BY ATTORNEY BEEN:
4
Q.
5
record and evaluation, do you believe that there's a
6
substantial likelihood that K
7
for corrunitment if treatment were withdrawn?
8
A.
Yes.
9
Q.
And can you explain that a little bit?
10
A.
Well, I've explained I do believe she's improved with
11
her current treatment interventions care and safe keeping at
12
this group home, Evergreen and with medications.
13
distinctive lack of insight into her mental illness and that
14
impedes her treatment in general.
Okay.
Ooctor, based on your review of the treatment
would be a proper subject
But she has
15
And so if she is off commitment or if treatment is
16
withdrawn, she will, in my opinion, almost certainly stop her
17
medications, she will almost certainly leave Evergreen.
18
mentioned to me that she would live with family in Illinois,
19
but her mother cited advancing age, and just being
20
uncomfortable with the stress of this, due to her mother's
21
age.
22
set-up.
23
believe she would stop them, and without stable housing, she
24
would decompensate and become a proper subject for
25
corrunitment, in my opinion, again.
She
So I don't think she has any kind of set housing
And I'm concerned that off medications, which I
18
76a
1
Q.
Thank you.
Doctor, have you -- during your meeting with
2
her, did you attempt to explain the advantages and
3
disadvantages of accepting psychotropic medications?
4
A.
Yes.
5
Q.
And do you believe that she is capable of expressing an
6
understanding of the advantages and disadvantages of
7
accepting treatment and the alternatives?
8
A.
9
kept
It was superficial.
She basically could express -- she
what she did keep expressing was that she's not
10
mentally ill, and that I talk to myself and that is not
11
mental illness, she said.
12
is not mental illness.
13
wrong, but they're -- she is mentally ill.
14
Q.
15
able to express a superficial understanding of the advantages
16
and disadvantages of accepting treatment and the
17
alternatives, do you believe that she is substantially
18
capable of applying that understanding of the advantages,
19
disadvantages, and alternatives to her illness in order to
20
make an informed choice as to whether to accept or refuse
21
psychotropic medication?
22
A.
No.
23
Q.
All right.
24
testified to, concerning your,
25
certainty that she will stop taking meds, do you have any
homelessness
And homeless isn't
But -- and neither of those are
Well, let me ask the follow-up question.
Even if she's
And in addition to what you've already
I think you said, nearly
19
77a
1
other opinion -- or information to add in support of that
2
opinion?
3
A.
4
psychotropics and she -- I forget if she told me she was
5
going to stop them or not, I truly forget.
6
believe she will stop her medications sooner or later, if she
7
is off commitment, probably sooner, in my opinion.
8
state -- now she is on an injectable, so that will last up to
9
a month.
10
suggests she will not pursue voluntary treatment if not on
11
commitment.
12
will not pursue voluntary treatment.
13
Q.
14
value for
15
A.
Yes.
16
Q.
And would any medications that she is -- or I didn't ask
17
you -- is she currently prescribed medications?
18
A.
Yeah, yes.
19
Q.
And would any of the medications that she's prescribed
20
unreasonably impair her ability to prepare for or participate
21
in any subsequent legal proceedings?
22
A.
She has a history of being noncornpliant with
I can't
But I think the history and her presentation
Whether medications or treatment in general, she
In your opinion, would medications have a therapeutic
?
No.
23
ATTORNEY BEEN:
24
THE COURT:
25
But I firmly
I have no further questions.
Attorney Drury?
CROSS-EXAMINATION:
20
78a
1
BY ATTORNEY DRURY:
2
Q.
3
on direct that you relied on some notes from Evergreen; is
4
that right?
5
A.
Yeah.
6
Q.
And Evergreen is the outpatient treatment facility that
7
KIIIIIIIIIIIII lives at now?
8
A.
Yes, I went through those notes.
9
Q.
You testified that you didn't have those notes with you?
10
A.
Oh, I didn't have the old Winnebago notes, I do have the
11
Evergreen notes.
12
Q.
13
period to what time period?
14
A.
I have the month of May.
15
Q.
Okay.
16
A.
I have
J have some, your Honor.
Dr. Bales, first you testified
And the Evergreen notes that you have are from what time
Well, that makes this a lot shorter.
17
ATTORNEY DRURY:
18
THE COURT:
19
ATTORNEY DRURY:
Your Honor, may I approach?
You may.
Can I have this marked?
Dave, I should have given this to you first.
20
Sorry
Thank you.
So Dr. Bales, I'm going to be handing you what's been
21
Q.
22
marked as Exhibit No. 1, if the judge would permit me to do
23
that?
24
THE COURT:
I'm sorry?
25
ATTORNEY DRURY:
Do I have permission to approach?
21
79a
1
THE COURT:
2
ATTORNEY DRURY:
Yes, you do.
Thank you.
3
Q.
4
the notes you reviewed?
5
A.
Yes.
6
Q.
Okay.
7
you reviewed other records?
8
A.
9
records, exact same ones.
10
Q.
Sure, that's fine.
11
A.
So I am in receipt of those.
12
Q.
Okay, great, thank you.
13
is just so we have the record there?
14
A.
Is what has been marked as Exhibit No. 1 consistent with
So in terms of Klllllllllllll's placement at Evergreen,
I have this, so I don't need this, but I have the same
I'll just reference this, this
Yes, okay.
15
ATTORNEY DRURY:
Your Honor, I wonder -- I'm going
I wonder if your Honor
16
to be referencing this calendar
17
has a suggestion where I put it so counsel and the witness
18
might be able to see, I'm thinking over by the jury box?
THE COURT:
19
20
Yeah, I think maybe over there
somewhere.
21
22
Attorney Been, can you see
ATTORNEY DRURY:
Okay.
ATTORNEY BEEN:
Yes, thank you.
this okay?
23
24
BY ATTORNEY DRURY:
25
Q.
And Dr. Bales can you see this okay?
22
80a
1
A.
Adequately, I think.
2
Q.
Okay.
3
notes for the month of May, which I'm highlighting in green.
4
But would it be fair to say that K
5
Evergreen on January 20th of 2018?
6
A.
I believe so.
7
Q.
And you haven't reviewed -- to support your opinion
8
any notes in January of 2018, February of 2018, March of
9
2018, April of 2018?
10
A.
11
all I can offer the Court.
12
the most recent.
13
Q.
14
most important month to your analysis of whether an extension
15
of the commitment would be appropriate?
16
A.
17
focused on May.
18
mental health issues in quote years gone by.
19
focus on May.
20
Q.
21
records by her treating psychiatrist, Dr. Ambas.
22
A.
23
me, though.
24
Q.
Would you recognize those if you saw them again?
25
A.
Yes.
No.
All right.
So Dr. Bales, you reviewed Evergreen
was first placed at
But I asked about her how she was doing and that's
I focused on May because that's
Would it be fair to say that May would be sort of the
It's all important, but I can tell you I'm mainly
All right.
I did have some records talking about her
But yes, I did
And then I imagine that you also reviewed
I did have some access to those, I don't have those with
23
81a
1
ATTORNEY DRURY:
2
THE COURT:
Okay, your Honor, may I approach?
You may.
3
BY ATTORNEY DRURY:
4
Q.
5
Bales, I'm handing you what's been marked as Exhibit No. 2.
6
A.
Okay.
7
Q.
Could you identify for the Court what Exhibit No. 2 is?
8
A.
That's Dr. Ambas' notes.
9
Q.
And the time period that I've handed you of Dr. Ambas'
Thank you.
I'll have this marked as Exhibit No. 2.
Dr.
10
notes ranges from January 10 of 2018 to May 23 of 2018; does
11
that appear to be right?
12
A.
Yes.
13
Q.
That is also the period of the commitment?
14
A.
Yes.
15
Q.
Do you think in forming your opinion you've relied on
16
all of these notes?
17
A.
18
though.
19
Q.
Okay.
20
A.
But I've been informed of them and am generally aware of
21
her outpatient psychiatric care.
22
Q.
How did you --
23
A.
But I did not get provided all of those.
24
Q.
So how did you become aware of her general outpatient
25
well-being, if not through relying on Dr. Ambas' notes?
I have indirectly.
I've not had all those notes,
24
82a
1
A.
I had all these records, I had the crisis records.
2
Q.
And the crisis records -- just pause so we can go
3
through them one by one.
4
A.
Okay.
5
Q.
The crisis records would have been the records generated
6
in November of 2017 when the initial commitment was done?
7
A.
8
don't have, plain and simple.
9
Q.
Okay.
10
A.
And yet I think that I have had enough information truly
11
to state my opinions to a, quote, reasonable degree -- if not
12
beyond that -- of medical certainty, okay.
13
Q.
14
trying to establish the facts supporting that opinion because
15
I'm a little bit confused at this point.
16
A.
Sure.
17
Q.
So you are unaware that on March 21 of 2018, � met
18
with Dr. Ambas?
19
A.
I didn't know the date.
20
Q.
And you are unaware that on March 21 of 2018, Dr. Ambas
21
indicated that� -- K
22
improved to the extent that he thought, quote, she was
23
already showing some stability of symptoms of her mental
24
illness, so she may not need to have her commitment extended?
25
A.
I have some of those.
Okay.
But so you have some records I
And I understand that's your opinion, we're just
1
s, excuse me -- condition had
That's his opinion, that's
25
83a
Well, why don't you do me this favor, am I reading that
1
Q.
2
incorrectly on the note?
3
A.
Is that in this Exhibit 2?
4
Q.
It would be, Doctor.
5
dated 3-21 of 2018.
6
mental status examination heading.
7
A.
8
said.
9
So that if that's what he said, that's what he said.
10
Q.
11
when you formed your opinion?
12
A.
13
because there were concerns.
14
involved.
15
Did he -- he said may not need, but he was, you know, that's
16
what he said.
17
Q.
Doctor, why don't I ask you this, Dr. Ambas met with
18
KIIIIIIIIIIIII on January 10 of 2015; is that right?
19
A.
Yes.
20
Q.
And he met with her on January 31 of 2018; is that
21
right?
22
A.
I have no idea.
23
Q.
Does it indicate that in those records?
24
A.
When exactly?
25
Q.
Why don't you check Exhibit No. 2 to see if I'm wrong.
It would be the progress note
And it would be the paragraph preceding
I don't doubt that's what he said, so that's what he
And I know Dr. Ambas, I know him, he 1 s a good doctor.
But that wasn't a fact that you took into consideration
I have been asked to see if I would assess the situation
And there's been many people
And that she did need her commitment extended.
I don't -- if he did, he did.
26
84a
1
A.
Well, I'm sure you're not wrong.
2
I guess I would object.
ATTORNEY BEEN:
He's
3
indicating that a lot of these records he didn't even have.
4
So I'm not sure how he can testify to Dr. Ambas' records and
5
what dates that there were specific meetings.
6
THE WITNESS:
Yeah, but
7
ATTORNEY BEEN:
Doctor.
8
THE WITNESS:
9
THE COURT:
The key thing -- yeah, I'm sorry.
I'll sustain the objection.
10
BY ATTORNEY BEEN:
11
Q.
12
a monthly basis for an extended period of time might be more
13
familiar with her situation than a doctor who has spent a
14
half hour with her one time?
15
A.
They should be.
16
Q.
Okay.
17
A.
I'm not in his situation with people, so certainly he
18
should be.
19
Q.
I haven't
20
A.
Okay, I'm sorry.
21
Q.
-- haven't asked a question yet, we're going to
22
transition into a different line of questioning now.
Okay.
Would you agree that a doctor who sees K
on
You
23
characterize your 30 minute contact with rllllllllllllll as her being
24
cooperative, right?
25
A.
She was.
27
85a
1
Q.
2
didn't personally observe her doing any self-talking?
3
A.
No.
4
Q.
She was able to carry on the conversation with you?
5
A.
She
6
Q.
Okay.
7
A.
And to her credit, she was going on, she was fine.
8
Q.
So these reports of self-talking that you have gotten,
9
you've gotten from the Evergreen notes and other collateral
10
reports that have been submitted to you; is that right?
11
A.
Yes.
12
Q.
You indicated that according to the records you've
13
reviewed in the course of the commitment, � has improved
14
her status regarding her mental health condition?
15
A.
I believe she has improved.
16
Q.
And you're not aware of notes indicating that after her
17
medications were adjusted on March 21 of 2018, that Evergreen
18
staff noticed a substantial decline in her condition?
19
A.
20
both before and after May as being constant.
21
talking to self, and it's throughout the Evergreen -- the
22
month of May.
23
Q.
24
better knowledge of the symptoms than yourself; is that
25
right?
And when you spoke with her for those 30 minutes, you
I will use the phrase, she held it together.
The Evergreen staff has seen ongoing psychotic thinking,
They say
But it would be the Evergreen staff that would have
28
86a
I don't know.
1
A.
2
opinions, that's what I can tell you.
3
documentation suggests clear ongoing psychotic thinking.
4
Q.
And that was documentation from the month of May?
5
A.
Yes.
6
Q.
The self-talking that was reported here, it is true that
7
the self-talking didn't contain any type of suicidal threats?
8
A.
That's correct.
9
Q.
And it's true that the self-talking didn't create any
10
sort of direct threat at harm to another person?
11
A.
12
records.
13
behavior, nor has she been assaultive that has been
14
substantiated.
15
Q.
16
to try to assault people that have been interfered with?
17
A.
18
concern and it was not substantiated and so to her credit,
19
I'm not going to rely on that.
20
report that there was some incident and it was not
21
substantiated so I respect that.
22
Q.
23
you did not observe� act violently or threaten
24
violence?
25
A.
I -- I rely on the records to form my
And the Evergreen
And --
Not that I know of.
And I looked all through these
I have not seen that she's had any suicidal
And she hasn't otherwise had, you know, these attempts
Nothing that's been substantiated.
There was one
I did make note of it in my
And under your care, the 30 minutes you spent with her,
No.
She was cordial, present, cooperative with me.
29
87a
1
Q.
2
have of her behaviors prior to the commitment extension -- or
3
the commitment being issued in this case.
4
have you reviewed records in connection with her detention?
5
A.
6
petition for examination.
7
some documents, we apparently have -- both have different
8
records.
9
to her original commitment.
Okay.
So I want to talk to you about the knowledge you
Do you have --
I have a document from November 6, 2017 regarding a
There's a report, but -- I have
But I'm familiar with some of the incidents leading
Okay.
So the conduct that led to her original
10
Q.
11
commitment,
12
as suicidal, correct?
13
A.
I know of no suicidal gestures or attempts ever,
14
not.
I'm under oath and I to her credit,
15
suicidal behavior ever.
16
Q.
And do you -- I'm sorry that we have to go through this?
17
A.
No, that's fine.
18
Q.
But it's a slightly different question than the question
19
I've asked you before and I'm trying to make the record
20
clear.
21
of any direct or indirect threat of harm to another person,
22
correct?
23
A.
Would you repeat that, please?
24
Q.
Sure.
25
documents during the commitment and prior to the
it would be unfair to characterize that conduct
I do
I don't know of any
So you would also agree that ever, you were unaware
Have you ever -- through the review of the
30
88a
1
commitment -- become aware of any direct or indirect threat
2
to other people made by�
3
A.
4
otherwise I don't know, and I looked through all the month of
5
May and I did not see that she had been assaultive to herself
6
or others in the month of May.
7
don't know -- I asked about things and in the previous months
8
and no one knew of assaultive or self-injurious behavior
9
during that time either.
10
Q.
11
issued of I<.111111111111 -- I guess we've covered that, so I can move
12
on.
13
commitment, K
14
A.
Yes.
15
Q.
That order to treat requires her to take certain
16
medications?
17
A.
Yes.
18
Q.
Some of those medications are injectable?
19
A.
Yes.
20
Q.
And some of those medications are in pill form?
21
A.
Yes.
22
Q.
And that through the course of her commitment she has
23
taken all of the injectable medications at the time that she
24
was supposed to take the injectable medications?
25
A.
No.
There was the unsubstantiated incident.
So
And some of the prior -- I
And there are no records prior to the commitment being
You would agree that during the course of the
has been under an order to treat?
My understanding is because she has to.
31
89a
1
Q.
Okay.
2
A.
She does comply as far as I know.
3
reports -- was she cheeking or not, or
4
medications with prompting as directed in general.
5
Q.
6
prompting, doesn't she?
7
A.
8
I do not think she would comply long-term with psychotropics
9
off commitment.
10
Q.
11
getting at the facts that are underlying that opinion.
12
A.
Okay.
13
Q.
So you know, through the commitment period are you able
14
to point to a document or specific date where it was alleged
15
that she was cheeking her medicine?
16
that?
17
A.
18
they
19
takes her medication.
20
Q.
So she hasn•t had to be, like, held down -
21
A.
No.
22
Q.
-- to have any medications administered to her?
23
A.
No.
24
Q.
You would agree that in general persons who carry the
25
diagnosis that you believe KIIIIIII has, which is?
There were a few
but she takes her
And sometimes she takes her medications without
I don't know.
I believe so.
But she -- it's my opinion
And I understand what your opinion is, but again, we're
Do you know who observed
I can't -- I can•t cite any distinct incidents where
but they do carefully watch her to make sure she
32
90a
There 1 s so
1
many different iterations of it,
2
mistake.
3
A.
Schizophrenia.
4
Q.
Schizophrenia, okay.
5
schizophrenia in the community who are unmedicated, correct?
6
A.
Yes.
7
Q.
And that by virtue of having that diagnosis, it doesn't
8
necessarily render an individual dangerous, correct?
9
A.
Correct.
10
Q.
Your report, you know,
11
here that I want to go over, and I think it makes sense to
12
introduce your report into evidence here.
13
marked as Exhibit No. 3.
14
to moving this into evidence, or did you prefer --
I don't want to make a
So there are people with
kind of outlines some behaviors
Does the county have any objection
15
ATTORNEY BEEN:
No.
16
ATTORNEY DRURY:
Okay,
17
be moved into evidence.
18
THE WITNESS:
19
right here,
20
21
I've got a copy.
THE COURT:
Any objection to Exhibit 3 being
entered?
ATTORNEY BEEN:
23
THE COURT:
25
I'd ask that Exhibit No. 3
Oh, I've got a copy, but I'll set it
22
24
Could I have this
No.
I will order that Exhibit 3 be
received into evidence.
ATTORNEY DRURY:
Okay, thank you.
33
91a
Now, Doctor, just so I understand your testimony today,
1
Q.
2
when you testified that Ms.
3
voices, it's your testimony today that that is not
4
necessarily dangerous behavior, correct?
5
A.
Correct.
6
Q.
And some of the, like, the giggling that you reference
7
in your report also wouldn't be considered dangerous?
8
A.
Correct.
9
Q.
Nor would, you know, making animal sounds, right?
10
A.
Correct.
11
Q.
So you cite these examples, all of which would have
12
happened in the month of May?
13
A.
Yes.
14
Q,
And you cite these examples as reason for which the
15
treatment has been successf�l in part, but also unsuccessful
16
in part?
17
A.
Yes.
18
Q.
Ideally, if the treatment were a hundred percent
19
successful,
20
behavior, right?
21
A.
Yes.
22
Q.
But she is exhibiting that type of behavior, so the
23
treatment in your opinion has not been a hundred percent
24
successful?
25
A.
ltlllllllllllll is talking in different
ltlllllllllllll wouldn't be exhibiting that type of
Correct.
She's having, you know, ongoing talking to
34
92a
1
self, reflecting, 1 believe, response to internal psychotic
2
stimuli.
3
Q.
4
psychotic stimuli, as you put it, doesn 1 t necessarily make
5
her dangerous?
6
A.
Yes.
7
Q.
It just shows that her symptoms are not a hundred
8
percent controlled?
9
A.
Yes.
10
Q.
When you were talking to� about the side effects
11
that she experiences as a result of these medications, you
12
discussed with her the possibility that the medications will
13
lead to weight gain?
14
A.
15
it's
16
usually weight neutral, and I explained that.
17
gain can happen with any of these psychotropics.
18
always -- it's not just the ladies, it's the guys too that
19
care about that.
20
Q.
And diabetes can result as a consequence?
21
A.
Extremely rare.
22
Q.
Muscle rigidity can be a consequence of this medication?
23
A.
It happens.
24
for what they call EPS.
25
Cogentin for that side effect.
But the fact that she is responding to this internal
I believe we talked -- we did talk about that.
Although
as I explained usually INVEGA in particular, it's
But weight
And I
And I mentioned that.
And I explained she's on a side effect pill
And I went over that, she's on
35
93a
These drugs can also cause cardiac arrythmia; is that
1
Q.
2
right?
3
A.
4
encyclopedic on what can happen.
5
reviewed cardiac issues because they're so uncommon and rare.
6
Q.
7
arrythmia?
8
A.
9
she's generally medically healthy, and I don't know on her
10
cardiac status.
11
12
Jt you get a PDR, it's an
I've not seen it, but it can.
But I don i t believe I
suffers from cardiac
Are you aware that�
I don't know in detail, but she may.
I put -- I feel
Your Honor, I have no further
ATTORNEY DRURY:
questions for this witness.
13
THE
14
ATTORNEY BEEN:
15
THE COURT:
COURT:
Attorney Been?
I have no further questions.
All right, is there any objection to
16
Dr. Bales being excused?
17
ATTORNEY DRURY:
No.
18
ATTORNEY BEEN:
No.
19
THE WITNESS:
20
THE COURT:
21
THE WITNESS:
22
THE COURT:
23
ATTORNEY BEEN:
Okay, thank you.
You're excused then, Doctor.
Thank you.
Mm-hnun, thank you.
Thank you, Doctor.
24
would call Heather Van Kooy.
25
THE CLERK:
The county
Please raise your right hand.
36
94a
H E A T H E R
1
V A N
K O O Y,
2
called as a witness herein, having been first duly sworn, was
3
examined and testified as follows:
4
DIRECT EXAMINATION:
5
BY ATTORNEY BEEN:
6
Q.
7
spell your last name for the record.
8
A.
Heather Van Kooy, V-A-N
9
Q.
And how are you currently employed?
10
A.
As a behavioral health case manager with Waupaca County
11
Human Services.
12
Q.
And how long have you been so employed?
13
A.
I've been employed with the department for 16 years.
14
Q.
And in your capacity as a case manager, are you familiar
15
with� E91111111?
16
A.
Yes.
17
Q.
And how are you familiar with her?
18
A.
I'm her current case manager.
19
Q.
And how long have you been her case manager?
20
A.
Since November of 2017.
21
Q.
And can you just generally explain to the Court what
22
your role is as it pertains to� as a case manager?
23
A.
24
monitoring her commitment, making sure that she has adequate
25
care, adequate shelter, coordinating care and treatment with
Ms. Van Kooy, could you please state your full name and
K-0-0-Y.
As a case manager, monitoring the -- in K
37
95a
's case
1
the other providers, and generally just overseeing her care.
2
Q.
Do you also have personal contact with her?
3
A.
Yes.
4
Q.
And how frequently do you have contact?
5
A.
Approximately once per month.
6
Q.
Okay.
7
also rely on other records and reports in fulfilling your
8
position as case manager, correct?
9
A.
Yes.
10
Q.
And is it also your role -- or let me just ask -- you,
11
in your role as case manager, signed a document concerning an
12
extension of the commitment?
13
A.
Yes.
14
Q.
And so you, as case manager, had requested that this
15
extension occur?
16
A.
Yes.
17
Q.
And based on your involvement with the case, why do you
18
believe that an extension was warranted?
19
A.
20
treatment and care that she's receiving currently, I believe
21
that she will no longer take her medications, become more
22
unstable, and potentially a danger to herself as a result of
23
that.
24
Q.
25
taking medications, what information are you relying on in
Other than trying to see her once per month, you
I believe an extension is warranted because without the
Now, when you indicate that you believe she will stop
38
96a
1
having that opinion?
2
A.
3
with her.
4
Q.
5
involved with her, have you -- do you have an opinion as to
6
whether she's doing better or worse than when you first
7
became involved?
8
A.
9
December, she is doing better than she was at that time.
That would be based on history of our department working
All right.
And in your opinion, since you've been
When I first became involved in late November, early
10
There was a point during this past six months where she was
11
doing better than she is right now.
12
believe she's better than she was six months ago, yes.
13
Q.
14
specifying, clarifying your answer -- you said there was a
15
period when she was doing better than she is now; when would
16
that have been?
17
A.
18
after she was released from inpatient hospitalization.
19
Q.
20
being at Evergreen?
21
A.
Yes.
22
Q.
All right.
23
say that she's not doing as well?
24
A.
25
incidents of responding to voices, to being more agitated,
Okay.
But at this point, I
So just picking -- well, not picking apart, but
Within the first couple of weeks to couple of months
Okay.
And would that be during the early period of
What are your concerns currently when you
In what ways?
In the ways that she has been reported to have more
39
97a
1
and just in general appears to be symptomatic.
2
Q.
3
a medication change, are you aware when that medication
4
change occurred?
5
A.
I believe it was either March or April of this year.
6
Q.
All right.
7
profession -- or a qualified professional to testify
8
regarding medication, do you -- are you aware of whether
9
behaviors have been different before and after the medication
All right.
And there were some questions earlier about
And understanding that you're not a
10
change?
11
A.
12
medication change.
13
Q.
14
concerned for her stopping her medications, based on her
15
history with the department, are you aware of prior instances
16
when she has stopped following through when she wasn't on
17
commitment?
18
There was an increase in her symptoms after the
All right.
Are you -- you indicated that you were
ATTORNEY DRURY:
Your Honor, if the county is
19
going to elicit this type of information, I think the county
20
likely had an obligation to disclose evidence of such to me
21
prior to the hearing.
22
received from Heather -- excuse me, Ms. Van Kooy -- are for
23
the pendency of the commitment.
24
THE COURT:
25
The county has not.
The notes I have
So you haven't received records prior
to November of 2017 from the department?
40
98a
ATTORNEY DRURY:
1
From the department, no -- from
the county, no.
2
THE COURT:
3
I will sustain the objection.
4
BY ATTORNEY BEEN:
5
Q.
6
insight into having a mental illness?
7
A.
In your contacts with KIIIIIIIIIIIIII, does she demonstrate
No.
8
ATTORNEY BEEN:
9
THE COURT:
10
ATTORNEY DRURY:
I have no further questions.
Attorney Drury?
Thank you, your Honor.
CROSS-EXAMINATION:
11
12
BY ATTORNEY DRURY:
13
Q.
Ms. Van Kooy?
14
A.
Yes.
15
Q.
Okay.
16
16 years?
17
A.
Yes.
18
Q.
You handle probably a very large case load?
19
A.
It's not that large.
20
Q.
Great, how large is it?
21
A.
I believe right now I have about 15 people I'm working
22
with.
23
Q.
24
a social worker?
25
A.
Ms. Van Kooy, you 1 ve been with the department for
Okay, totally manageable.
And you have been trained as
Yes.
41
99a
1
Q.
By going to schools and by keeping up with CL~'s?
2
A.
Yes.
3
Q.
Are you licensed?
4
A.
I have a certification through the State of Wisconsin.
5
Q.
Okay.
6
a certification?
7
A.
Yes.
8
Q.
Okay.
9
have you always worked with individuals who have been alleged
Which is different from a license, but it's still
And through your history with the department,
10
to be mentally ill?
11
A.
I have for 14 years.
12
Q.
Okay.
13
that you would agree that note-taking is a relatively
14
important responsibility of your job?
15
A.
Yes.
16
Q.
You have to document what is happening in the case both
17
so that your memory is accurate, right?
18
A.
Yes.
19
Q.
And because you know that these notes might be used by
20
the department in the future to make decisions?
21
A.
Yes.
22
Q.
Decisions such as whether to extend a commitment
23
hearing?
24
A.
Yes.
25
Q.
So you make it a point to keep thorough notes about your
And in your training and experience, I imagine
42
100a
1
contacts that you have with a client that you're supervising?
2
A.
Relevant contacts, yes.
3
Q.
Okay.
4
A.
There are contacts that sometimes are made with
5
community members, that if we don't have necessarily an open
6
case, they're not -- they're not made into an open case and
7
therefore there's not record of that.
8
Q.
9
load contacts you, you make a point to write that down,
10
correct?
11
A.
Direct contact with them, yes.
12
Q.
And if someone from Evergreen called you about a
13
situation that was happening with�, you also would make
14
a point to write that down, right?
15
A.
Yes.
16
Q.
And you've reviewed your notes before testifying today?
17
A.
Yes.
18
Q.
And you found them to be complete and accurate summary
19
of your contact with K
20
commitment?
21
A.
And what is a relevant contact in your opinion?
Not relevant.
But one of the 15 people on your case
Yes.
ATTORNEY DRURY:
22
23
through the pendency of the
Okay.
Your Honor, can I have
this marked as Exhibit No. 4?
24
BY ATTORNEY DRURY:
25
Q.
I should ask you, Ms. Van Kooy, do you keep these notes
43
101a
1
as a regular matter of business?
2
A.
I don't know what you mean by that.
3
Q.
Do you prepare these notes for court hearings only?
4
A.
No.
5
Q.
Or do you keep them as part of your job?
6
A.
Part of my job.
7
Q.
And do you write down the information when you receive
8
the information?
9
A.
10
then at some point I relay it into a more professional note
11
in our system.
12
Q.
13
in a different place, but you're plugging them in and it's
14
the same thing that you plug in, right?
15
A.
Yes.
16
Q.
And do you take notes like this not just in �·s
17
case, but in all the cases that you supervise?
18
A.
I often write it down in a notebook, handwrite it, and
Okay.
So you have this system where you're taking notes
Yes.
19
ATTORNEY DRURY:
20
THE COURT:
21
ATTORNEY BEEN:
22
THE COURT:
23
BY ATTORNEY DRURY:
24
Q.
25
Your Honor, I 1 d move Exhibit 4.
Any objection?
No.
Exhibit 4 will be received.
In these notes I want to go over some of the documented
contacts that you had with Itlllllllllllll through the pendency of her
44
102a
1
hearing.
2
just printed it off how I got it.
3
chronologically, which means I'm going to start towards the
4
back.
And unfortunately, I should have organized these, I
But I'm going to start
And really what I'm interested in is January 19 you
5
had contact with KIIIIIIIIIIIIII,
6
that� was discharged from Gateway and was placed at
7
Evergreen, right?
8
A.
Yes.
9
Q.
And you had contact with her on that date because you
10
were actually involved in transporting K11111111111111 to Evergreen?
11
A.
Yes.
12
Q.
And prior to that you were involved in, you know,
13
figuring out the placement and setting it up so that she had
14
a place to go under the commitment order?
15
A.
Yes.
16
Q.
So you saw� at that period of time, and then a
17
short time later you saw her on January 31 here in Waupaca
18
County?
19
A.
Yes.
20
Q.
And I should note that Evergreen is an outpatient
21
residential facility that is located in Juneau County?
22
A.
Yes.
23
Q.
And the driving distance is approximately an hour and a
24
half?
25
A.
Now this would have been the date
Yes.
45
103a
So when� goes to the doctor, she actually comes
1
Q.
2
back to Waupaca County to go to the doctor?
3
A.
Yes.
4
Q.
And you make it a point to be at those doctor's
5
appointments so you can check in with her?
6
A.
If I'm available, yes.
7
Q.
And on that March 31 date -- excuse me, January 31 date
also saw Dr. Ambas at that point?
I<
8
9
A.
I believe so, yes.
10
Q.
Okay.
11
the same date that she had an appointment?
12
A.
Yes.
13
Q.
And that in between January 31 and February 21 of 2018,
14
it doesn't appear that you documented any contacts with
15
KIIIIIIIII; that wouldn't be abnormal?
16
A.
No.
17
Q.
Okay.
18
21, the next time you had contact with her was March 13 and
19
that was a contact that was made over the phone; does that
20
sound right?
21
A.
I'd have to refer to the record here, quick.
22
Q.
Go ahead.
23
A.
What was it, March 13?
24
Q.
Yes.
25
A.
Okay, yeah.
You saw her again on February 21, which was also
So when you checked in with
46
104a
r111111111 on February
Okay.
So in between there, it looks like you had made
1
Q.
2
some collateral contacts with Illllllllllllll's family members to see
3
whether transfer to Illinois was an appropriate option for
4
her?
5
A.
Yes.
6
Q.
Kllllllllllllll's mother resides in Illinois?
7
A.
Yes.
8
Q.
Kllllllll 1 s daughter resides in Illinois?
9
A.
Yes.
10
Q.
And in fact on March 8 there is a note that's written by
11
a colleague of yours indicating that IIIIIIIIIIIIIII is stable at that
12
point, right?
13
A.
March 8?
14
Q.
Mm-hmm.
15
A.
Yes.
16
Q.
And did you disagree with your coworker based on the
17
contact that you had with KIIIIIIIII?
18
A.
Do I disagree with that note?
19
Q.
Yes.
20
A.
No.
21
Q.
Now, there was a doctor's appointment on March 21 that
22
rllllllllllllll attended that you did not attend?
23
A.
Right.
24
Q.
So you can't really testify as to what happened there,
25
but you would say that around this period of time, Itlllllllllllll's
47
105a
1
behavior, which had been very stable, ctid not do as well?
2
A.
3
yes, that medication change was made and we started to see
4
some deterioration.
5
Q.
6
that you did not regularly witness� responding to
7
internal stimuli?
8
A.
From January 31 to March 21, is that what you 1 re asking?
9
Q.
The part of the outpatient would be important, so
10
January 19 to March 21 about.
11
A.
Did I personally witness?
12
Q.
And in consulting with those people in Evergreen, did
13
you have concerns over whether she was self-talking during
14
this period of time?
15
A.
16
became much more intense after that.
17
Q.
18
define what that change was.
19
that change was more agitation according to you, right?
20
A.
Yes.
21
Q.
Incidents where she would be self-talking, she'd be
22
responding to internal stimuli as you put it?
23
A.
Yes.
24
Q.
And apart from that, you said in general she was more
25
symptomatic; what do you mean by that?
If that was -- I believe that was around the time that,
So prior to this March 21 date, would it be fair to say
No, I did not.
I don't recall specific events up until that time.
Okay.
It
So the change that became more intense, let's
You testified on direct that
48
106a
1
A.
2
herself, pacing, arguing with herself, using different
3
voices, making different sounds.
4
Q.
All self-talking?
5
A.
Those are what I would explain as symptoms.
6
Q.
So all self-talking symptoms?
7
A.
Some agitation with other residents at the home, too.
8
Q.
Let's talk about that, on April 2 K
9
altercation with another person that lives at Evergreen,
10
right?
11
A.
Was April 2 the one that resulted in a slap in the face?
12
Q.
Nope.
13
resident verbally who called her a bitch and a dyke.
14
A.
Okay.
15
Q.
And tried to barge into the bathroom when she was using
16
it.
17
A.
Okay.
18
Q.
Were you aware that these other residents had displayed
19
this aggressive behavior towards K
20
there?
21
A.
I did read in the notes, yes.
22
Q.
Now just to be clear, �
23
where there are 11 other males residing at Evergreen?
24
A.
I 1 m not sure of the number, but several males, yes.
25
Q.
And she's the only female?
There were more frequent instances of the responding to
was in an
April 2 is where� was attacked by another
when she was placed
is placed at a location
49
107a
1
A,
Yes.
2
Q.
So there was an incident where there was another
3
resident who seemed to be the primary aggressor in that
4
situation?
5
A,
Okay.
6
Q.
Are you aware of that from your contact with Evergreen?
7
A.
Yeah, it would have been in the same notes that you
8
have, yes.
9
Q.
And you've reviewed those notes, right?
10
A.
Yes.
11
Q.
And you're making your opinion based on the review of
12
those notes?
13
A.
Yes.
14
Q.
And you would agree after that incident, K
15
more time isolating herself in her room?
16
A.
I don't know.
17
Q.
Okay.
18
A.
I don't know how often she was in her room prior to that
19
either.
20
Q.
Okay.
21
A.
I just know more about the symptoms, as opposed to where
22
she was at the time.
23
Q.
Because you're not there on a day-to-day basis?
24
A.
Right.
25
Q.
You're seeing her, as you said, approximately once a
spent
I honestly can't answer that.
50
108a
1
month?
2
A.
Right.
3
Q.
You're not observing her everyday?
4
A.
Right.
5
Q.
And in fact, the last time that you saw her prior to
6
this petition being filed was on April 25 of 2018?
7
A.
8
Q.
9
visiting her doctor?
10
A.
When she was what?
11
Q.
Visiting her doctor, Dr. Ambas?
12
A.
Yes.
13
Q.
You were present at that hearing.
14
Dr. Ambas didn't make any medication change on that date?
15
A.
Yes.
16
Q.
Even though there had been some deterioration?
17
A.
Yes.
18
Q.
These incidents where you are aware -- where you claim
Yes.
And April 25 of 2018 was also a time when KIIIIIIIIIIIIII was
You were aware that
19
that Itllllllllllll was responding to voices, you're not aware of her
20
making any threats of self-harm?
21
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.