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SCOW holds ch. 51 commitment not moot but affirms on the merits

Marathon County v. D.K., 2020 WI 8, 2/4/2020, affirming an unpublished court of appeals decision; 2017AP2217; (case activity)

The caption is the most confusing part of this opinion:

ZIEGLER, J., delivered the majority opinion of the Court with respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and HAGEDORN, JJ., joined, the majority opinion of the Court with respect to Part V., in which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined, and an opinion with respect to Parts IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

But it’s not as bad as it looks! And this decision makes (some) law: specifically, that an appeal of an original commitment is not moot where the commitment has the continuing effect of forbidding its subject to possess firearms.

All seven justices are in agreement on that point. On the merits–that is, on whether there was sufficient evidence that D.K. was dangerous to others–things get a little more complicated.

The evidence was the testimony of a single doctor. He said that D.K.–who had said he planned to kill police and various others he thought were mocking him–was dangerous to others:

He stated that D.K. was “paranoid about people around him. He had thoughts of harming those people who were talking about him, making fun of him. He also was making some threats against [the] police department because he had thought that they were not listening to him . . . .” Corporation counsel then asked, “Did he tell you what his intentions were with regard to the police or any of the persons in the public?” Dr. Dave responded, “Yes.” “He plans on strangulating the police officer and also killing the people who made fun of him.” Dr. Dave also testified that D.K.’s threats were directly related to his delusional disorder.

On cross, the same doctor said D.K.

“was acting on his delusional belief and he could be potentially dangerous”; “can act on those thoughts and he can become potentially dangerous”; “could be still potentially dangerous”; “was expressing those thoughts and he probably may have acted on those thoughts”; and “most possibly . . . might act on those thoughts.” Dr. Dave also stated, “I don’t think I can make [a] difference whether he will act on his thoughts or not.”

(¶¶8-9). The majority says this was good enough: that the doctor wasn’t required to be certain and that the ambiguities of his cross-examination were made up for by his direct. The majority does, however, fault the circuit court and the litigants there for failing to make a clean record that, it says, could have obviated appeal:

We pause once more to speak to the bench and the bar. We do so because finality in a commitment proceeding is very important to all concerned. D.K.’s commitment expired in November 2017, and he will not have a final answer to the question whether his commitment was appropriate until 2020. Had certain things happened in the circuit court below, perhaps D.K.’s appeal would have been unnecessary. The record was sufficient in this case, but it could have been more detailed. The County could have further developed its medical expert’s testimony, moved the expert’s report into evidence, and properly provided notice of its witnesses. Also, the circuit court could have made more detailed and thorough factual findings and clarified its legal conclusions. A commitment is no trivial matter. Taking more time at the circuit court can save years of uncertainty on appeal.


A point well taken! Though if the trial bench and bar are regularly sloppy with these proceedings, it might have something to do with the fact that the appellate courts almost invariably rubber-stamp commitments, however thin the evidence and shoddy the procedures.

The concurrence also thinks the evidence good enough, but it disagrees with the majority about what, precisely, must be shown to meet the dangerousness standard in Wis. Stat. § 51.20(1)(a)2.b. Like most of § 51.20, that subpart is convoluted; the operative language for this case requires a finding that person is dangerous because he “Evidences a substantial probability of physical harm to other individuals as manifested by… evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent … threat to do serious physical harm.”

It’s a weird construction right? The third clause is evidence of the second is evidence of the first. So, if the third condition is met–if a person has made a recent threat to do serious physical harm–does that necessarily mean people have been placed in reasonable fear, and does that necessarily mean there’s a substantial probability of physical harm actually happening? In part, it depends what we take “evidence” and “evidenced” to mean: does it mean something more like “suggest” or “tend to show,” or does it mean “prove”? The majority chooses the former: just because you’ve made a threat doesn’t mean people were reasonably fearful, and even if they were reasonably fearful, that doesn’t mean there’s actually a substantial probability you’ll hurt somebody. The concurrence chooses the latter meaning, and thus thinks threat=reasonable probability, by a three-step syllogism.

The majority has the better argument. Why would the legislature bother with the intermediate step of “reasonable fear” if a threat always created a substantial probability of serious physical harm? If the law were really what the concurrence says, the statute could be a heck of a lot shorter. What’s more, as a matter of common sense–and of due process, which forbids commitment absent actual dangerousness, proved by a clear and convincing evidence, Addington v. Texas, 441 U.S. 428, 432-33 (1979)–it can’t be that any threat to hurt someone equates to actual danger. We all know this; it may not be laudable but it’s certainly much more commonplace to threaten murder and mayhem than to carry it out. There’s such a thing as a plainly idle threat, and this sort of threat, by definition, doesn’t generate “reasonable fear” in others.

Regardless, that “majority” is actually only a three-justice plurality on this point, so the dispute on the dangerousness standard remains unsettled.

Justices A.W. Bradley and Dallet dissent, saying the doctor’s testimony was too ambiguous to be probative of dangerousness.

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