Sufficient evidence supported finding that “Donald” was dangerous under Chapter 51

Marathon County v. D.K., 2017AP2217, 8/7/18, District 3 (1-judge opinion, ineligible for publication); petition for review granted 7/10/19, affirmed, 2020 WI 18; case activity

“Donald” is the pseudonym the court of appeals opinion assigned to D.K., who was committed under §51.20(a)2.b. Although Dr. Dave, the examining physician, waffled on the odds of whether Donald might do serious physical harm without commitment and treatment, the court of appeals found that his conclusion–that Donald posed a “substantial risk of danger to others”–got the job done.  It also acknowledged a potential antidote to mootness arguments in Chapter 51 appeals.

Under WIS. STAT. § 51.20(1)(a)2.b., an individual is dangerous if he or she “Evidences a substantial probability of physical harm to other individuals as manifested … by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm.” Dr. Dave variously testified that Donald “could be potentially dangerous,” “was markedly impaired,” “had delusional feelings and could still be “potentially dangerous” despite treatment. Opinion ¶6. Clearly, there’s a noticeable difference between a person who is “potentially dangerous” and a person who poses “a substantial probability of physical harm.”

However, the court of appeals affirmed because other parts of the record supplied the requisite proof.   “Dr. Dave unequivocally concluded, in his expert opinion, that Donald “presented a substantial risk of danger” to other people, due in large part to the direct nexus between his disorder and his threats.” Opinion ¶9. 

Likewise, while in Dr. Dave’s presence, Donald specifically threatened strangulation and murder of multiple people for specific, delusional perceptions of his ill treatment by those people. We conclude those “plans” and threats establish a “reasonable fear … of serious physical harm” under § 51.20(1)(a)2.b. In sum, the circuit court’s dangerousness determination was based upon a correct interpretation of § 51.20(1)(a)2.b. and was supported by the evidence. Opinion ¶11.

This was an appeal from Donald’s original 6-month commitment, which expired before the release of this opinion. The court of appeals often dismisses these appeals as moot, but it didn’t this time:

Donald represents that his initial commitment has expired and that the County has not petitioned to extend his commitment. Nevertheless, he argues that this appeal of the commitment order is not moot, in part due to the order’s continuing effect of barring him from possessing a firearm. The County does not address this argument in its response brief, so we do not opine on mootness here but rather reach the merits of this appeal. See State v. Verhagen, 2013 WI App 16, ¶38, 346 Wis. 2d 196, 827 N.W.2d 891 (unrefuted arguments are deemed conceded). Opinion ¶3 n.3.