Marathon Cnty. v. D.K. (In re Condition D.K.)

390 Wis.2d 50

937 N.W.2d 901

2020 WI 8

In the MATTER OF the condition of D.K.:

Marathon County, Petitioner-Respondent,

v.D.K., Respondent-Appellant-Petitioner.

No. 2017AP2217

Supreme Court of Wisconsin.

Oral Argument: November 25, 2019

Opinion Filed: February 4, 2020

For the respondent-appellant-petitioner, there were briefs filed by Catherine R. Malchow, assistant state public defender. There was an oral argument by Catherine R. Malchow.

For the petitioner-respondent, there was a brief filed by Michael J. Puerner and Scott M. Corbett, corporation counsel. There was an oral argument by Michael J. Puerner.

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of an unpublished decision of the court of appeals, Marathon County v. D.K., No. 2017AP2217, unpublished slip op., 2018 WL 3758247 (Wis. Ct. App. Aug. 7, 2018), affirming the Winnebago County circuit court's¹ Wis. Stat. ch. 51 orders for involuntary commitment and involuntary medication and treatment.² D.K. argues that he should not have been committed because the County failed to prove by clear and convincing evidence that he was dangerous as defined under Wis. Stat. § 51.20(1)(a) 2.b. (2015-16).³ The County disagrees, and also argues that D.K.'s commitment is a moot issue.

¶2 At the final hearing, the County had to prove by clear and convincing evidence that D.K. was mentally ill, a proper subject for commitment, and dangerous. Wis. Stat. § 51.20(1)(a). The circuit court concluded that Winnebago County met its burden of proof, ordered D.K.'s involuntary commitment for six months, and ordered involuntary medication and treatment. The court of appeals affirmed. It concluded that D.K.'s threats and plans to strangle police officers and kill other people established a " ‘reasonable fear ... of serious physical harm’ under § 51.20(1)(a) 2.b.," and, therefore, "the circuit court's dangerousness determination ... was supported by the evidence." D.K., No. 2017AP2217, unpublished slip op., ¶11. On review, we are asked to decide two issues: (1) whether D.K.'s challenge to his commitment order is moot; and (2) whether there was clear and convincing evidence that D.K. was dangerous under § 51.20(1)(a) 2.b.

¶3 We conclude that D.K.'s commitment is not a moot issue because it still subjects him to a firearms ban. We also conclude that there was clear and convincing evidence at the final hearing that D.K. was dangerous as defined under Wis. Stat. 51.20(1)(a) 2.b. Thus, we affirm the court of appeals.

I. FACTUAL BACKGROUND

¶4 On April 25, 2017, Officer Kelly Schmitz of the Winnebago County Sheriff's Department arrested D.K. The next day, Officer Schmitz filed a Statement of Emergency Detention by Law Enforcement Officer in the Winnebago County circuit court. According to the Statement, D.K. had complained that the Oshkosh Police Department bugged his phone and that other people were "stalking him" and lying about him. The Statement also alleged that D.K. had emailed the Department's human resources director and requested a meeting with the police chief so he could "strangle him to death." It also alleged that D.K. had threatened to "hurt every single person" who was stalking him and lying about him.

¶5 On April 28, 2017, the circuit court commissioner determined that there was probable cause to believe that D.K. was mentally ill, a proper subject for treatment, and dangerous to himself or others. See Wis. Stat. § 51.20(7)(a). The circuit court commissioner ordered that D.K. be detained at Winnebago Mental Health Institute pending a final hearing. That same day, the circuit court issued an Order Appointing Examiners, appointing Dr. Jagdish Dave and Dr. Yogesh Pareek. See Wis. Stat. § 51.20(9)(a). Both doctors examined D.K. and filed reports with the circuit court. See Wis. Stat. § 51.20(9)(a)5.

¶6 On May 11, 2017, the circuit court held a final hearing. See Wis. Stat. §§ 51.20(10), (13). Winnebago County presented only one witness—Dr. Dave. Winnebago County did not move Dr. Dave's report into evidence at the hearing, although the report had been filed with the circuit court.⁴ Winnebago County did not call Dr. Pareek or any fact witness such as Officer Kelly or the human resources director to testify.⁵ D.K. did not testify. Thus, the only evidence at the final hearing was Dr. Dave's testimony.

¶7 Dr. Dave is a psychiatrist. He stated that he had the opportunity to evaluate D.K. Dr. Dave spoke with D.K., observed him, and reviewed his records. Dr. Dave stated his conclusion to a reasonable degree of medical certainty that D.K. suffered from a mental illness called delusional disorder and had "substantial disorder of thought and perception." He also concluded that D.K.'s judgment and behavior were substantially impaired, he was a proper subject for treatment, and he needed treatment. Corporation counsel for Winnebago County then asked Dr. Dave, "Based on your interview of [D.K.] were you able to form an opinion as to whether or not he had presented a substantial risk of danger to either himself or others?" Dr. Dave responded, "To other people."

¶8 Dr. Dave then explained the basis of his opinion. 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.

¶9 On cross-examination, Dr. Dave made multiple other statements relevant to D.K.'s argument before this court. Dr. Dave stated that 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."

¶10 It is this final hearing evidence that we review, along with the circuit court's findings and conclusions, for clear and convincing evidence of dangerousness.

II. PROCEDURAL POSTURE

¶11 The circuit court made an oral ruling at the final hearing. The circuit court concluded:

Based on the testimony that at this point is the only testimony and it's uncontroverted, I do find that Dr. Dave testified that [D.K.] suffers from a major mental illness.

...

He testified that [D.K.] is mentally ill, that [D.K.] is a proper subject for treatment. He testified that he is a danger to others, specifically that he is paranoid, that he has thoughts of harming people and has made threats to the police department that he wanted—he had thoughts that he wanted to strangle police and kill people. These are homicidal thoughts and that's what the doctor testified to.

On that basis I do find that it's appropriate that [D.K.] be committed for a period of [6] months, that he be under the care and custody of the department and that it be inpatient treatment at this time.

When counsel for D.K. asked the circuit court to clarify under which statutory subsection it found dangerousness, corporation counsel suggested that the circuit court's findings fell under Wis. Stat. § 51.20(1)(a) 2.b., "which would be indicating that he evidences a substantial probability of physical harm to others as manifested by evidence of recent homicidal or other violent behavior." The circuit court responded, "That's what I heard the doctor testify to."

¶12 The circuit court issued its Order of Commitment that same day. It stated that the grounds for commitment were that D.K. was mentally ill, dangerous, a proper subject for treatment, and a resident of Winnebago County. It also stated that, as a result of his commitment, D.K. was prohibited from possessing a firearm. The circuit court also issued its Order for Involuntary Medication and Treatment. D.K. then filed a Notice of Intent to Pursue Postcommitment Relief.⁶

¶13 On May 17, 2017, D.K. was transferred from inpatient to outpatient status. On June 12, 2017, the circuit court issued an Order for Transfer of Venue to Marathon County because D.K. had changed his residence to Marathon County. On November 6, 2017, D.K. filed a Notice of Appeal. On November 11, 2017, D.K.'s six-month commitment expired and the County did not seek an extension.

¶14 On August 7, 2018, the court of appeals issued its decision affirming the circuit court. First, it declined to address whether the issue was moot because the County did not argue mootness in its briefing.

D.K., No. 2017AP2217, unpublished slip op., ¶3 n.3 (citing State v. Verhagen, 2013 WI App 16, ¶38, 346 Wis. 2d 196, 827 N.W.2d 891 (unrefuted arguments are deemed conceded)). Second, the court of appeals concluded:

[W]hile in Dr. Dave's presence, [D.K.] 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 [Wis. Stat.] § 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.

D.K., No. 2017AP2217, unpublished slip op., ¶3 n.3.

¶15 On September 5, 2018, D.K. petitioned this court for review. We granted the petition.

III. STANDARD OF REVIEW

¶16 We must first determine whether D.K.'s challenge to his six-month commitment is moot because it has expired. Mootness is a question of law that we review independently. Waukesha Cty. v. S.L.L., 2019 WI 66, ¶10, 387 Wis. 2d 333, 929 N.W.2d 140.

¶1...