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Fractured Supreme Court opinion criticizes lower courts

A fractured opinion from the Wisconsin Supreme Court criticizes the lower courts’ lack of detail in an appeal over a Marathon County man’s involuntary commitment to a mental institution.

The high court reviewed an unpublished decision from a Court of Appeals case involving court-ordered six-month involuntary commitment, medication and treatment for a man, referred to as D.K., in 2017.

A Winnebago County Sheriff’s official arrested D.K. and filed a statement of emergency detention after D.K. threatened to hurt people who he thought were stalking and lying about him. The official said D.K. had also emailed the police department’s human-resources director requesting a meeting with the police chief so he could “strangle him to death.”

At D.K.’s hearing, a psychiatrist testified that D.K. was paranoid, dangerous to others and in need of treatment.

“He plans on strangulating the police officer and also killing the people who made fun of him,” the doctor said during the hearing.

The circuit court issued an Order of Commitment, and D.K. began treatment in May 2017. He filed a Notice of Appeal in November 2017 and, a few days later, saw his six-month commitment expired. The county did not seek an extension of his commitment.

In his appeal, filed in Marathon County because he had moved, D.K. argued that the county had provided no clear and convincing evidence proving he was dangerous. The appellate court disagreed, concluding in August 2018 that the county had met its burden of proof. The state Supreme Court took up the case in July 2019.

In an opinion released on Tuesday, Chief Justice Pat Roggensack and Justices Rebecca Bradley, Dan Kelly, Brian Hagedorn and Annette Ziegler made up the majority upholding the lower courts’ decision that there was clear and convincing evidence showing D.K. was dangerous. They concluded that state statute defines dangerousness as a state in which it’s more likely than not that a person will hurt others.

“While mere possibility and conjecture are insufficient, we will not disregard Dr. Dave’s testimony simply because he expressed something less than certainty,” Ziegler wrote. “Furthermore, we have never required a mental illness expert to be clairvoyant and we decline to do so now.”

At the end of the opinion, the majority discussed the lower courts and their handling of the facts in the case. When the case first started, Winnebago County didn’t move the doctor’s report into evidence and did not call in another doctor who had examined D.K. or any of the officers as witnesses.

The concurring justices said D.K.’s appeal would have been unnecessary had the record contained more details, if the county had further developed its medical expert’s testimony and if the circuit court had provided more detailed and thorough factual findings and clarified its conclusions.

“A commitment is no trivial matter,” Ziegler wrote. “Taking more time at the circuit court can save years of uncertainty on appeal.”

Justices Rebecca Bradley and Dan Kelly filed a concurring opinion. They agreed with the majority’s conclusions but disagreed with its methods of statutory analysis.

“Instead of relying exclusively on precedent, the majority should have analyzed and applied the plain meaning of the statutory text,” Rebecca Bradley wrote. “Because the majority’s analysis fails to clearly apply the plain words of the statute, I respectfully concur.”

Justices Rebecca Dallet and Ann Walsh Bradley dissented, saying they’d reverse and vacate the circuit court’s order.

“Possibility and probability are not, as the majority opinion assumes, simply interchangeable,” Dallet wrote. “This court has often said an expert opinion expressed in terms of possibility or conjecture is insufficient.”


About Michaela Paukner, mpaukner@wislawjournal.com

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at mpaukner@wislawjournal.com.

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