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SCOW will review the petitioner’s burden on dangerousness in ch. 51 cases

Marathon County v. D.K., 2017AP2217, petition for review granted 7/10/19; affirmed 2/4/2020; case activity

As our prior post noted, the court of appeals upheld D.K. (or “Donald”)’s commitment against his challenge to the sufficiency of the evidence. The supreme court has now agreed to decide whether the testimony of the examining physician, who was the sole witness at D.K.’s trial, supplied enough for the court to find by “clear and convincing evidence” a “substantial probability” that D.K. was dangerous.

That physician said D.K. had a “delusional disorder” and also relayed statements that D.K. had made about “plans on strangulating” a police officer and killing other people who made fun of him. Asked whether he thought D.K. actually meant to do these things or was simply blowing off steam, the physician opined that “[w]hen it is expressed in the context of a delusional though, that it is most possibly [sic] that he might act on those thoughts not realizing that these are not … real thoughts.” (¶9). In this and other instances, the doctor spoke of a possibility of dangerousness–he also repeatedly labeled D.K. as “potentially dangerous.” The state high court will now decide whether this noncommittal opining was “clear and convincing evidence” of a “substantial probability” D.K. would harm someone.

A potential side issue: D.K.’s commitment is over. The court of appeals identified but didn’t decide the question of mootness, saying the county had failed to respond to D.K.’s argument that the lasting consequences of an original commitment are enough to keep the controversy live. The supreme court recently held a commitment extension moot, in Portage County v. J.W.K., but noted that its reasoning wouldn’t apply to an original commitment.

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