COURT OF APPEALS

DECISION

DATED AND FILED

December 23, 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. 2020AP1183-FT Cir. Ct. No. 2015ME25

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF J.M.K.:

CALUMET COUNTY,

 PETITIONER-RESPONDENT,

 V.

J.M.K.,

 RESPONDENT-APPELLANT.

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

JEFFREY S. FROEHLICH, Judge. Affirmed. 
No. 2020AP1183-FT

2

¶1 DAVIS, J.1 “Jane”2appeals from an order extending her 

involuntary commitment under WIS. STAT. ch. 51. Jane concedes that she is a 

proper subject for recommitment and challenges only the accompanying order for 

involuntary medication and treatment. Specifically, Jane argues that Calumet 

County (the County) did not prove that she was incompetent to refuse 

psychotropic medication, pursuant to WIS. STAT. § 51.61(1)(g)4. We disagree and 

conclude that the County met its burden. Accordingly, we affirm.

BACKGROUND

¶2 Jane has been subject to continuous orders for involuntary 

commitment and involuntary medication and treatment since 2015. In August 

2019, the County petitioned for an extension of her most recent commitment 

order. A hearing was held in October 2019, at which three witnesses testified: Dr. 

Marshall Bales, a court-appointed psychiatrist; Laurissa Schisel, Jane’s behavioral 

health case manager at the Calumet County Department of Health and Human 

Services; and Jane. 

¶3 Bales testified that he had examined Jane a month before the 

hearing; he was also generally familiar with her case, as he had met her on at least 

two other occasions. According to Bales, Jane had diagnosed schizoaffective 

disorder, and at the time of examination, “she was clearly, very clearly in a manic, 

psychotic, and delusional mental state ... it was very clear that she was in an 

exacerbation of her mental illness.” It was Bales’ belief that despite Jane’s 

 

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.

2

 For ease of reading, we refer to the subject individual by a pseudonym, not initials.
No. 2020AP1183-FT

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assertion to the contrary, she had not been taking her medication. Bales based this 

suspicion on a number of facts, including Jane’s affect during the visit: when not 

on medication, Jane “gets manic. She gets psychotic. She gets dangerous.... She 

cannot think clearly. She has had all kinds of problems off medication numerous 

times all through the years.” Bales also mentioned “a report that [Jane] had been 

noncompliant with medications.” In addition, Jane had told her daughter that she 

was not taking her medication. Bales noted that Jane “said she did not need 

medication” and “said she hates medication. She said she embellished side effects 

of medication. She minimized benefits. And she will not take medication without 

a court order basically.” It was Bales’ further belief that Jane’s medication 

noncompliance directly led to two recent hospitalizations, in May and September 

2019. Bales explained that Jane was now “on observations to make sure she takes 

her medication” because “she may have been cheeking her medication.”3

¶4 When asked to further explain why a court order was necessary, 

Bales stated:

[Jane is] sick. She will not take medications if she can get 

out of it. She said things like, quote, “I love being off 

medications.”

 ....

And throughout the interview she said things like, quote, “I 

see no benefit to any of these psych medications.” What 

she did also is embellish side effects and minimize benefits, 

so she clearly will not take medications on her own free

will .... 

 

3

 “Cheeking” is a colloquial term for hiding medication in the mouth to avoid 

swallowing it.
No. 2020AP1183-FT

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Bales testified that he had explained the advantages and disadvantages of, and 

alternatives to, medication and that Jane did not appear to understand them. 

¶5 Schisel, Jane’s behavioral health case manager, testified that Bales’

testimony was “consistent” with what she had observed during her two and onehalf years working with Jane. Schisel explained that Jane’s two hospitalizations 

were, in fact, caused by medication noncompliance, as Bales suspected. 

Apparently, Jane had managed to avoid taking some of her medication, even 

though she was on “med monitoring.”4Jane’s recent noncompliance stemmed 

from a belief that her medication was changed without her approval; therefore, she 

did not believe she needed to take it. Schisel noted a stark difference in Jane’s 

behavior on and off medication: when “mentally stable on her medications, she 

engages appropriately,” “involves herself in community outings,” and “watches 

her grandchildren.” At those times, Jane could make coherent conversation, 

without interrupting or talking loudly. When not on medication, on the other 

hand, Jane became “delusional,” “agitated,” and “angry.” Schisel testified that she 

had “observed this repeated behavior on meds, off meds for the past two years.” 

¶6 Jane also testified. She did not directly admit that she purposefully 

stopped taking her medication—instead, she stated that she “mixed them up and 

goofed them up.” In Jane’s view, there was an unexplained change in her 

medication, and despite repeatedly asking “the County” about it, “they never give 

me a clear answer.” Jane agreed, however, that she “didn’t want to take the pill 

 

4

 A private agency contracted with the County to ensure that Jane took her medication on 

nights and weekends. Schisel did not explain why Jane was able to circumvent medication 

monitoring, other than to state that the agency was not “doing their job.” It appears that the 

problem with the agency was resolved by the time of the hearing.
No. 2020AP1183-FT

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that [she] didn’t believe was prescribed,” thus implicitly conceding that she did 

not take some of her medication. 

¶7 The circuit court accepted the truth of the testimony before it, 

including Jane’s past noncompliance with medication, her exaggeration of the side 

effects of medication, and her seeing “no benefit” to medication. The circuit court 

also noted that it appeared “quite clear” to Bales that Jane did not understand “the 

benefits and disadvantages of taking those medications.” Thus, the court 

concluded, “due to her mental illness, [Jane] is substantially incapable of applying 

an understanding of the advantages, disadvantages, and alternatives to her 

condition and is unable to make an informed choice as to whether to accept or 

refuse psychotropic medications.” The court entered an order for involuntary 

medication and treatment to accompany the one-year order extending Jane’s 

recommitment. Jane now appeals. 

DISCUSSION

¶8 A court may order involuntary commitment or recommitment upon 

finding, by clear and convincing evidence, that the individual has a mental illness, 

is a proper subject for treatment, and is dangerous under one of five statutory 

standards. WIS. STAT. § 51.20(1)(a), (1)(am), (10)(c), (13)(e). These required 

findings were made in this case and have not been challenged on appeal. Rather, 

this case involves the involuntary medication order that accompanied the 

recommitment order. Medication orders require a separate analysis as to whether 

the individual is incompetent to make a choice to refuse necessary medication.5 

 

5

 Such finding is not required for those committed pursuant to the fifth “dangerousness” 

standard, WIS. STAT. § 51.20(1)(a)2.e., but that was not the applicable standard here. See WIS.

STAT. § 51.61(1)(g)3.
No. 2020AP1183-FT

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WIS. STAT. § 51.61(1)(g)3.; Outagamie County v. Melanie L., 2013 WI 67, ¶37, 

349 Wis. 2d 148, 833 N.W.2d 607. As relevant to that determination, the statute 

provides as follows:

[A]n individual is not competent to refuse medication ... if, 

because of mental illness ... and after the advantages and 

disadvantages of and alternatives to accepting the particular 

medication ... have been explained to the individual, one of 

the following is true:

 a. The individual is incapable of expressing an 

understanding of the advantages and disadvantages of 

accepting medication ... and the alternatives.

 b. The individual is substantially incapable 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....

Sec. 51.61(1)(g)4.; see also Melanie L., 349 Wis. 2d 148, ¶¶53-55.

¶9 In keeping with the statutory language, our supreme court has 

reiterated that “[t]here are thus two ways under WIS. STAT. § 51.61(1)(g)4. that a 

person who is mentally ill and who has received the requisite explanation of the 

advantages and disadvantages of and alternatives to medication may be found 

incompetent to refuse such medication.” Melanie L., 349 Wis. 2d 148, ¶54. One 

way is to prove, by clear and convincing evidence, that the individual is incapable 

of expressing an understanding of the advantages and disadvantages of accepting 

the prescribed medication (and the alternatives). Id. Inasmuch as this standard 

requires proof that the individual does not even possess a general understanding of 

the medication, our supreme court has recognized that this can often be “a difficult 

standard for a county to meet.” Id. That led the legislature to craft the second and 

“somewhat relaxed standard” in § 51.61(1)(g)4.b. set forth above—namely, that 

the county prove, again by clear and convincing evidence, that the individual is 
No. 2020AP1183-FT

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substantially incapable of applying the understanding that is the subject of the first 

standard to his or her particular situation. Melanie L., 349 Wis. 2d 148, ¶¶54-55. 

¶10 Thus, both standards require the individual to possess a general 

understanding of the advantages and disadvantages of, and alternatives to, the 

prescribed medication; WIS. STAT. § 51.61(1)(g)4.a. further requires that the 

individual be able to articulate that understanding, whereas § 51.61(1)(g)4.b. 

requires that the individual be able to apply that understanding to his or her 

situation. By way of example, a county would likely be unable to meet its burden 

under the first standard if the committed individual expresses some understanding 

as to what the prescribed medication could offer generally. On the other hand, a

county might meet its burden with respect to that same individual under the 

second standard if that individual, despite understanding the general attributes of 

the medication, were incapable of rationally assessing its impact on him or her 

personally. In reviewing findings under either standard, we will uphold the circuit 

court’s factual findings unless clearly erroneous, and we will accept all reasonable 

inferences from those facts. Melanie L., 349 Wis. 2d 148, ¶38. Whether those 

facts satisfy the statutory requirement for involuntary medication is a question of 

law that we review de novo. Id., ¶39.

¶11 We resolve this case under the second standard, concerning Jane’s 

ability to apply her general understanding to her particular situation, and conclude 

that there was clear and convincing evidence that Jane was incompetent to refuse 
No. 2020AP1183-FT

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medication.6 First, with respect to the “understanding” component of this 

standard, Bales did not merely parrot the statutory language when he testified that 

Jane was unable to understand the advantages and disadvantages of, and 

alternatives to, medication. Cf. Winnebago County v. S.H., 2020 WI App 46, ¶17, 

393 Wis. 2d 511, 947 N.W.2d 761. Rather, his testimony and other evidence 

amply support this conclusion. For example, at one point, Jane came to believe 

that her medications were switched without her knowledge; this was one of her 

stated reasons for stopping her medications. There was no evidence, however, of 

this switch, and thus Jane’s belief otherwise is likely the type of delusional or 

disordered thinking that may indicate a lack of basic understanding about the 

medication. See Melanie L., 349 Wis. 2d 148, ¶50 (“[I]n determining whether the 

evidence shows a person understands the advantages, disadvantages, and 

alternatives to a particular medication ... a circuit court should ‘take into account’ 

... ‘whether the patient holds any patently false beliefs about the recommended 

medication or treatment which would prevent an understanding of legitimate risks 

and benefits.’” (citation omitted)). Even if there were a problem with Jane’s 

medication on one occasion, this does not explain Jane’s “repeated” attempts over 

the years to go off medication.7 A history of medication noncompliance without a 

 

6

 We recognize that the appealed-from commitment order and accompanying medication 

order expired in October 2020. Neither Jane nor the County advance any argument as to why, in 

such circumstance, Jane’s appeal is (or is nonetheless not) moot, or why any exceptions to the 

mootness doctrine should (or should not) apply. See Marathon County v. D.K., 2020 WI 8, ¶19, 

390 Wis. 2d 50, 937 N.W.2d 901. We do view this issue, however, as one that is “likely of 

repetition and [yet] evad[ing] review,” and for which our discussion may be of practical help to 

future litigants. See id. With that consideration in mind, and given the absence of any argument 

to the contrary, we will reach the merits of Jane’s appeal.

7

 Schisel testified that as of the November 2019 hearing, Jane “has not had any 

medication changes in the last six months.” Nonetheless, it is possible (albeit unlikely) that there 

may have been some error with Jane’s medication; for example, she may have received the wrong 

medication from her pharmacy. We need not decide this point for the purpose of Jane’s appeal.
No. 2020AP1183-FT

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reasonable explanation supports finding a lack of understanding as to its

advantages, disadvantages, and alternatives. See id., ¶75.

¶12 Second, even if Jane were capable of understanding the effects of 

medication, the evidence was fairly overwhelming that she could not apply that 

understanding to her situation. Bales did not limit discussion to Jane’s 

understanding in the abstract, but linked it back to Jane’s own condition: she 

downplayed, to the point of denying, any benefits of the medication to her illness

and she exaggerated the side effects, as justifications for her refusal to take 

medication. In short, in refusing her medication, Jane was not making anything 

that could be described as an “informed choice.” See WIS. STAT.

§ 51.61(1)(g)4.b.; Melanie L., 349 Wis. 2d 148, ¶76 (“‘Informed choice’ means a 

choice based on an informed understanding of the viable options with respect to 

medication or treatment.”). 

¶13 Jane nonetheless argues that evidence supporting the requisite 

“application” standard was lacking because Bales merely testified that Jane did not 

possess this understanding (rather than be capable of applying it), but this amounts 

to the same thing. If Jane could not comprehend the advantages and disadvantages

the medication offered to her, and the alternatives that were available to her, she 

could not apply that knowledge to her own mental illness. In other words, as 

discussed above, Bales may not have uttered the magic statutory words, but he did 

in fact discuss Jane’s inability to apply her understanding, testifying that Jane 

minimized or denied the benefits of medication and exaggerated its side effects. 

Further, Bales was not the only witness supporting this point: Schisel testified that 

Jane functioned normally only when taking medication, a point Jane seemed 

unable to appreciate in her own testimony. Additional evidence thus supports 

Bales’ testimony and the circuit court’s ultimate conclusion. We find that Jane 
No. 2020AP1183-FT

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met the statutory standard: “because of [her] mental illness,” she was 

“substantially incapable” of applying her understanding (if any) of her 

medication’s advantages, disadvantages, and alternatives to her own condition. 

See WIS. STAT. § 51.61(1)(g)4.b. We affirm.

By the Court.—Order affirmed.

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

809.23(1)(b) 4.