COURT OF APPEALS

DECISION

DATED AND FILED

January 2, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP1133 Cir. Ct. No. 2018ME49

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN THE MATTER OF THE MENTAL COMMITMENT OF D. J.:

MONROE COUNTY,

 PETITIONER-RESPONDENT,

 V.

D. J.,

 RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Monroe County: 

MARK L. GOODMAN, Judge. Affirmed.
No. 2019AP1133

2

¶1 GRAHAM, J.1 D.J. appeals an involuntary commitment order, 

which was entered by the circuit court in favor of Monroe County after a jury

found that D.J. met the statutory criteria for commitment. D.J. contends that he 

was denied procedural due process, and further, that the evidence presented at trial 

was insufficient to prove that he was “dangerous” as defined in WIS. STAT.

§ 51.20(1)(a)2. I conclude that D.J. forfeited his due process argument by failing 

to timely raise it in the circuit court, and that the evidence presented at trial was 

sufficient. Accordingly, I affirm.

BACKGROUND

¶2 D.J. has been diagnosed with schizoaffective disorder. On July 11, 

2018, while he was receiving care at the Gunderson Lutheran Behavioral Health 

Clinic, he became involved in an altercation with clinic staff and made threatening 

statements about members of the clinic staff, members of his family, and the 

President of the United States. Clinic staff also discovered that D.J. made what 

appeared to be weapons from clothing filled with wet paper towels and other

items. A Gunderson designee filed a statement of emergency detention pursuant 

to WIS. STAT. § 51.15, and D.J. was transferred to the Winnebago Mental Health 

Institute.

¶3 The statement of emergency detention commenced proceedings for 

D.J.’s involuntary commitment for mental health treatment pursuant to WIS. STAT.

§ 51.20. That statute allows a county to commit an individual if the county proves 

by clear and convincing evidence that the individual is mentally ill, a proper 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2017-18). 

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1133

3

subject for treatment, and “dangerous” as defined by at least one of five standards

set forth in § 51.20(1)(a)2. For ease of reference, this opinion refers to the 

statutory standards of dangerousness at issue in this case as the “first standard,”2

the “second standard,”3and the “fifth standard.”4

¶4 At a probable cause hearing, the circuit court found probable cause 

to believe that D.J. was mentally ill, a proper subject for treatment, and 

“dangerous to self or others.” The court did not further specify the standard of 

dangerousness that applied, nor did it check a box on the form order indicating 

that there was probable cause that D.J. was dangerous under the fifth standard.

 

2

 The “first standard,” which pertains to dangerousness to self, requires proof that the 

individual “[e]vidences a substantial probability of physical harm to himself or herself as 

manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.” WIS.

STAT. § 51.20(1)(a)2.a.

3

 The “second standard,” which pertains to dangerousness to others, requires proof that 

the individual “[e]vidences a substantial probability of physical harm to other individuals as 

manifested by evidence of recent homicidal or other violent behavior, or 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.” WIS. STAT. § 51.20(1)(a)2.b.

4

 The “fifth standard,” which is more complex than the others, provides in relevant part: 

“For an individual, other than an individual who is alleged to be drug dependent or 

developmentally disabled, after the advantages and disadvantages of and alternatives to accepting 

a particular medication or treatment have been explained to him or her and because of mental 

illness, evidences either incapability of expressing an understanding of the advantages and 

disadvantages of accepting medication or treatment and the alternatives, or substantial 

incapability of applying an understanding of the advantages, disadvantages, and alternatives to his 

or her mental illness in order to make an informed choice as to whether to accept or refuse 

medication or treatment; and evidences a substantial probability, as demonstrated by both the 

individual’s treatment history and his or her recent acts or omissions, that the individual needs 

care or treatment to prevent further disability or deterioration and a substantial probability that he 

or she will, if left untreated, lack services necessary for his or her health or safety and suffer 

severe mental, emotional, or physical harm that will result in the loss of the individual’s ability to 

function independently in the community or the loss of cognitive or volitional control over his or 

her thoughts or actions.” WIS. STAT. § 51.20(1)(a)2.e.
No. 2019AP1133

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¶5 The County retained two medical professionals, Dr. Marshall Bales 

and Dr. John Coates, to examine D.J. in preparation for trial. Both doctors 

submitted reports recommending involuntary commitment, and the reports were 

provided to D.J. eight days before trial. Both doctors agreed that D.J. was 

“dangerous,” although they appeared to disagree on which of the statutory 

standards of dangerousness applied to D.J. Dr. Bales concluded that D.J. qualified 

under the first and second standards, and Dr. Coates concluded that D.J. qualified 

under the second and fifth standards. Both doctors testified at trial, and their 

expert reports were received into evidence. The contents of their testimony and 

reports are discussed at greater length as needed in the discussion section below.

¶6 The circuit court prepared proposed jury instructions, which 

included instructions on the first, second, and fifth standards. The court gave the 

parties an opportunity to review and object to the proposed jury instructions, and 

neither party objected. The jury returned a special verdict finding that D.J. was 

mentally ill, dangerous, and a proper subject for treatment. The court entered an 

order imposing a six-month involuntary commitment and banning D.J. from 

possessing firearms.

DISCUSSION

¶7 D.J. raises two issues in this appeal. He argues that his procedural 

due process rights were violated, and also that the evidence presented at trial was 

insufficient to support the jury’s finding that he was “dangerous.” I address each 

argument in turn.
No. 2019AP1133

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I. Procedural Due Process

¶8 I first describe D.J.’s due process argument, and then explain why I 

decline to address it based on D.J.’s failure to preserve it in the circuit court.

¶9 In Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972),5the 

court concluded that the then-current version of Wisconsin’s involuntary 

commitment statute failed to provide constitutionally adequate process. The court 

held that an individual must receive notice of involuntary commitment 

proceedings “sufficiently in advance of the scheduled court proceedings so that 

reasonable opportunity to prepare will be afforded,” and this notice must inform 

the individual of, among other things, “the standard upon which he may be 

detained.” Id. at 1092. Following Lessard, the Wisconsin legislature significantly 

modified the laws governing mental health, and enacted new emergency detention 

and involuntary commitment statutes, WIS. STAT. § 51.15 and WIS. STAT. § 51.20. 

See 1975 Wis. Act 430. 

¶10 Based on the facts described above, D.J. argues that the County did 

not consistently identify the dangerousness standards it believed were satisfied by

his conduct. D.J. contends that by inconsistently stating the dangerousness 

standards under which it was proceeding, the County failed to satisfy Lessard’s 

mandate that D.J. be given notice of “the standard upon which he may be 

detained” sufficient to allow him a “reasonable opportunity to prepare” for the 

commitment hearing. See Lessard, 349 F. Supp. at 1092.

 

5

 Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), was twice vacated by the 

United States Supreme Court, 414 U.S. 473 (1974); 421 U.S. 957 (1975), but the 1972 opinion 

was ultimately reinstated, 413 F. Supp. 1318 (E.D. Wis. 1976).
No. 2019AP1133

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¶11 As D.J. acknowledges, he did not raise any due process objection

when his case was pending before the circuit court, nor did he object to the court’s 

proposed jury instructions, which included instructions on the first, second, and 

fifth standards of dangerousness. Generally, an issue is forfeited if it is raised for 

the first time on appeal. State ex rel. Anderson-El v. Cooke, 2000 WI 40, ¶29, 

234 Wis. 2d 626, 610 N.W.2d 821. The forfeiture rule is “a rule of judicial 

administration” and appellate courts have authority to address the merits of an 

unpreserved issue in exceptional cases. Id. For the following reasons, I conclude 

that D.J. has not shown it to be in the “best interests of justice” to address his due 

process argument despite his failure to raise it before the circuit court. See L.K. v. 

B.B., 113 Wis. 2d 429, 448, 335 N.W.2d 846 (1983).

¶12 First, D.J.’s assertion that he was deprived of a reasonable 

opportunity to prepare for the commitment hearing is conclusory, and D.J. does 

not identify any facts that would support such a conclusion. He contends that he 

was put in a “procedurally impossible position,” but does not describe any

procedural impossibility that he actually faced. He argues that the differing 

dangerousness standards require “widely varying strategies for trial preparation,” 

but he does not identify any pretrial investigation he could have done, any trial 

strategy he could have employed, or any defense he could have made but for the 

County’s method of proceeding. Cf. id. (it may be appropriate to disregard a 

forfeiture “if there are no factual issues that need resolution”).

¶13 Second, D.J. does not address whether the expert reports, which he 

received eight days before trial, provided sufficient notice to satisfy due process. 

Those reports provided express notification of all of the facts upon which the 

County proceeded at trial, as well as the three standards of dangerousness that the 

jury was ultimately instructed about. Rather than offering any argument that the 
No. 2019AP1133

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reports were insufficient to satisfy due process, D.J. ignores this issue. Cf. State v. 

Whitrock, 161 Wis. 2d 960, 970, 468 N.W.2d 696 (1991) (forfeiture may be 

overcome when the issue is “fully brief[ed]”).

¶14 Because I conclude that D.J.’s due process argument is forfeited, I 

do not address whether or when the County was required to specify the 

dangerousness standard it intended to rely on at trial, or whether the County’s 

conduct violated D.J.’s procedural due process rights.6

II. Sufficiency of the Evidence

¶15 D.J. also contends that the evidence presented at trial was 

insufficient to support the jury’s finding that he was “dangerous” as defined in

Wisconsin’s involuntary commitment statute.7 When addressing a challenge to 

the sufficiency of evidence to support a jury verdict, a reviewing court must 

sustain the verdict unless it concludes that there is no credible evidence to support 

it. Outagamie County v. Michael H., 2014 WI 127, ¶21, 359 Wis. 2d 272, 

856 N.W.2d 603. The court views the evidence “in the light most favorable to the 

verdict.” Id. The sufficiency of evidence is a question of law. Id.

 

6

 In his briefing, D.J. asks me to convert this appeal to a three-judge panel. He contends 

that his due process argument presents an issue of “substantial and continuing public interest” 

making this opinion suitable for publication under WIS. STAT. RULE 809.23(l)(a)5. This request 

for a three-judge panel comes too late, see WIS. STAT. RULE 809.41(1), and further, conversion 

would not be appropriate because I conclude that the due process argument is forfeited.

7

 The County argues that D.J. forfeited his sufficiency argument by failing to raise it 

before the circuit court, but this argument is unfounded. The issue of sufficiency may be raised 

for the first time in an appeal from a commitment order. See WIS. STAT. § 51.20 (appeals from a 

commitment order are governed by WIS. STAT. RULE 809.30); RULE 809.30(2)(h) (sufficiency 

may be raised for the first time on appeal).
No. 2019AP1133

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¶16 As noted above, dangerousness may be shown by any of five 

standards listed in WIS. STAT. § 51.20(1)(a)2., and the jury was instructed on three 

of the standards in this case. Given the nature of the arguments of the parties, I 

only address the sufficiency of the evidence under the second standard.

8

¶17 The second standard requires proof that the individual “[e]vidences a 

substantial probability of physical harm to other individuals,” and it may be shown 

by evidence of recent “violent behavior” or 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.”

WIS. STAT. § 51.20(1)(a)2.b.

¶18 The County presented evidence that D.J. made threatening 

statements to staff and constructed makeshift weapons, both at Gunderson and 

Winnebago. Dr. Coates testified that on the date of his altercation with Gunderson 

clinic staff, D.J. “was verbally threatening ... all while posturing at staff, and 

angry.” Dr. Coates also testified that D.J. had built a “makeshift weapon” by 

stuffing his pants with “wet Kleenexes, socks, and bedding,” and that he had 

apparently been “trying to make a weapon out of whatever he had.” And 

according to Dr. Bales’ report, after his transfer to Winnebago, D.J. “made 

makeshift weapons, forming a club” and told Winnebago staff that he would “fuck 

[their] shit up.” The report further states that D.J. threatened to “break[] a staff 

member in half” and told the staff member that was not a threat but “a promise.” 

 

8

 The County does not develop any argument that the evidence at trial was sufficient to 

satisfy the first or fifth standards. For purposes of this appeal, I presume the County concedes 

that the evidence was insufficient to support the verdict under the first or fifth standards. See

United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 

(party’s failure to respond to an argument may be taken as a concession).
No. 2019AP1133

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The report notes that there had been “many similar incidents,” and Dr. Coates 

similarly testified that D.J.’s threats against staff were “ongoing.”

¶19 The County also presented evidence that D.J.’s threats of violence 

were not limited to clinic staff. Dr. Coates testified that D.J. “was repeatedly 

talking about wanting to harm or injure his family ... and put them in the 

hospital.” According to Dr. Coates’ testimony and Dr. Bales’ report, D.J. 

threatened to kill “murderers and rapists” and assassinate Donald Trump.

¶20 Finally, the County presented evidence that D.J. exhibited violent 

behavior. Dr. Bales’ report states that D.J. “broke a door” while at the Winnebago 

clinic.

¶21 D.J.’s threats of physical violence against hospital staff and his 

family, considered in tandem with his continued attempts to make weapons, 

support a reasonable inference that these threats could reasonably put others in 

fear of “serious physical harm.” See Michael H., 359 Wis. 2d 272, ¶21 (we draw 

all reasonable inferences to support a jury’s verdict). Additionally, evidence that 

D.J. broke a door at the clinic supports a reasonable inference that D.J. exhibited 

recent violent behavior. Viewing the record evidence in the light most favorable 

to the verdict, there is credible evidence to support a finding that D.J. was 

“dangerous” under the second standard.

¶22 D.J. makes several arguments against the sufficiency of the 

evidence, but I conclude that these arguments are unavailing. First, D.J. argues 

that nothing in the record shows that he has ever in fact harmed anyone. But the 

statute does not require actual injury to other individuals, only a “substantial 

probability” of injury. WIS. STAT. § 51.20(1)(a)2.b. Lack of evidence of actual 

injury to others might be a fact that the jury could consider, but weighing the 
No. 2019AP1133

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evidence is a task left to the jury. See, e.g., Schneck v. Mutual Serv. Cas. Ins. 

Co., 23 Wis. 2d 649, 653, 128 N.W.2d 50 (1964).

¶23 Second, D.J. argues that he was not a danger to others because he 

did not “intend” the implements he built in the hospital to be used as weapons. 

But intent is not an element of dangerousness, and further, D.J. cites nothing in the 

record to show that the jury heard evidence regarding his intent.

¶24 Third, D.J. argues that he was not a danger to others because any

weapons he made from clothing stuffed with tissue paper could not possibly cause 

“serious physical harm.” This argument misstates the record. The jury received 

evidence not only that D.J. made a weapon from clothing and tissue paper, but 

also that he built a “makeshift club” while at Winnebago. And even assuming the 

weapons D.J. made could not have caused “serious physical harm,” the jury heard 

testimony that D.J. was attempting to make weapons with “whatever he had.”

This reasonably supports an inference that, if given the opportunity, D.J. might 

have made a more dangerous weapon to carry out his threats of violence.

¶25 Fourth, D.J. argues that he was not a danger to others because he had 

“no way to follow through on any of these threats.” He notes that doctors 

questioned whether he would be able to carry out his plan to assassinate Donald

Trump, but D.J. fails to explain how doubt about his ability to assassinate the 

President also calls into question his ability to harm his family or clinic staff. D.J. 

reasons that his family members “cannot be placed in ‘reasonable fear of violent 

behavior’ by someone who is immobilized in a four-point restraint on a board 

while incarcerated in a lock-down inpatient facility,” but the fact that D.J.’s 

commitment would prevent him from harming his family is no reason to believe 

he would pose no danger to them or to others if released.
No. 2019AP1133

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¶26 Fifth, D.J. argues that although he did “yell at” clinic staff, yelling 

alone cannot support a finding of dangerousness. He cites an unpublished case,

Chippewa County v. M.M., 2018 WI App 39, 382 Wis. 2d 832, 917 N.W.2d 234, 

for this proposition. The M.M. opinion is inapt because, as discussed in detail

above, the jury received evidence that D.J. did not merely “yell at” clinic staff, but 

threatened violence, made weapons, and damaged property.

¶27 Finally, D.J. argues that if he had assaulted hospital staff, it would 

not have been a “dangerous act” but instead “a sad, non-dangerous response to his 

mistreatment at the hands of those charged with his mental health care.” Setting 

aside all other problems with this argument, it fails because no evidence of this 

purported “mistreatment” was presented to the jury.9 In a challenge to the 

sufficiency of the evidence, the question is whether the evidence presented at trial

was sufficient to support the verdict. A sufficiency of the evidence argument is 

not a proper vehicle for raising a new defense theory that was not made at trial. 

See Best Price Plumbing, Inc. v. Erie Ins. Exch., 2012 WI 44, ¶23, 340 Wis. 2d 

307, 814 N.W.2d 419.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)4.

 

9

 D.J. appears to allege that he was mistreated because he was placed in restraints and 

because a Gunderson employee “mocked and provoked him.” The jury did hear testimony that 

D.J. was placed in restraints while speaking to Dr. Coates, but did not hear any evidence to 

suggest that these restraints constituted mistreatment or were in any way contrary to medical 

protocol. The jury heard no evidence relating to alleged misconduct by the clinic director.