2020 WI 8

SUPREME COURT OF WISCONSIN

CASE NO.: 2017AP2217

COMPLETE TITLE: In the matter of the condition of D. K.:

Marathon County,

 Petitioner-Respondent,

 v.

D. K.,

 Respondent-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 384 Wis. 2d 272,921 N.W.2d 14

(2018 – unpublished)

OPINION FILED: February 4, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: November 25, 2019 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Marathon 

JUDGE: Karen L. Seifert 

JUSTICES:

ZIEGLER, J., delivered the majority opinion of the Court with 

respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in 

which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and 

HAGEDORN, JJ., joined, the majority opinion of the Court with 

respect to Part V., in which ROGGENSACK, C.J., KELLY and 

HAGEDORN, JJ., joined, and an opinion with respect to Parts 

IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN, 

JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring 

opinion, in which KELLY, J., joined. DALLET, J., filed a 

dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

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.
2

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.
2020 WI 8

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP2217

(L.C. No. 2017ME132)

STATE OF WISCONSIN : IN SUPREME COURT

In the matter of the condition of D. K.:

MARATHON COUNTY,

 Petitioner-Respondent,

 v.

D. K.,

 Respondent-Appellant-Petitioner.

FILED

FEB 4, 2020

Sheila T. Reiff

Clerk of Supreme Court

ZIEGLER, J., delivered the majority opinion of the Court with 

respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in 

which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and 

HAGEDORN, JJ., joined, the majority opinion of the Court with 

respect to Part V., in which ROGGENSACK, C.J., KELLY and 

HAGEDORN, JJ., joined, and an opinion with respect to Parts 

IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN, 

JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring 

opinion, in which KELLY, J., joined. DALLET, J., filed a 

dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an 

unpublished decision of the court of appeals, Marathon County v. 

D.K., No. 2017AP2217, unpublished slip op. (Wis. Ct. App. 
No. 2017AP2217 

2

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 

 

1 The Honorable Karen L. Seifert presided. 

2 Winnebago County was the original petitioner in this case. 

But after the circuit court entered its order, venue was 

transferred to Marathon County. On appeal, Marathon County was 

designated as the petitioner-respondent and argued before the 

court of appeals and this court. Throughout this opinion, we 

will refer to Marathon County as "the County."

3 All subsequent references to the Wisconsin Statutes are to 

the 2015-16 version unless otherwise indicated.
No. 2017AP2217 

3

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 
No. 2017AP2217 

4

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 

 

4 We will not refer to the contents of Dr. Dave's report 

because the circuit court did not rely on it when it made 

factual findings and legal conclusions. Nor did the parties 

rely on its contents in their arguments before this court. 

Thus, we need not decide whether filing Dr. Dave's report with 

the circuit court was sufficient to enter the report into 

evidence.

5 The County attempted to call a different officer, but D.K. 

objected because the officer was not on the witness list. See 

Wis. Stat. § 51.20(10)(a). The circuit court sustained the 

objection and did not permit the officer to testify.
No. 2017AP2217 

5

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 
No. 2017AP2217 

6

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 
No. 2017AP2217 

7

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 

 

6 The various record documents refer interchangeably to a 

Notice of Intent to Pursue "Postconviction" Relief or "Post 

Disposition" Relief. Since this was a commitment proceeding, we 

refer to this document as a Notice of Intent to Pursue 

Postcommitment Relief.
No. 2017AP2217 

8

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.

¶17 We must also interpret Wis. Stat. § 51.20(1)(a)2.b. in 

order to determine whether the County proved dangerousness in 

D.K.'s case. The interpretation of a statute presents a 

question of law that this court "reviews de novo while 

benefiting from the analyses of the court of appeals and circuit 
No. 2017AP2217 

9

court." State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858 

N.W.2d 346 (citing State v. Ziegler, 2012 WI 73, ¶37, 342 

Wis. 2d 256, 816 N.W.2d 238).

¶18 Finally, we must review whether there was clear and 

convincing evidence of dangerousness as defined under Wis. Stat. 

§ 51.20(1)(a)2.b. at D.K.'s final hearing. D.K. does not 

challenge any of the circuit court's factual findings as clearly 

erroneous. "'We will not disturb a circuit court's factual 

findings unless they are clearly erroneous.'" Winnebago Cty. v. 

Christopher S., 2016 WI 1, ¶50, 366 Wis. 2d 1, 878 N.W.2d 109, 

cert. denied, 136 S.Ct. 2464 (2016) (quoting Outagamie Cty. v. 

Melanie L., 2013 WI 67, ¶38, 349 Wis. 2d 148, 833 N.W.2d 607). 

Accordingly, our review of statutory dangerousness requires us 

to apply the facts to the statutory standard and presents a 

question of law that we review independently. Christopher S., 

366 Wis. 2d 1, ¶50.

IV. ANALYSIS

A. The Commitment is Not a Moot Issue.

¶19 Mootness is a doctrine of judicial restraint. "'An 

issue is moot when its resolution will have no practical effect 

on the underlying controversy.'" Portage Cty. v. J.W.K., 2019 

WI 54, ¶11, 386 Wis. 2d 672, 927 N.W.2d 509 (quoting PRN Assocs. 

LLC v. DOA, 2009 WI 53, ¶25, 317 Wis. 2d 656, 766 N.W.2d 559). 

Because moot issues do not affect a live controversy, this court 

generally declines to reach them. Id., ¶12. But we may 

overlook mootness if the issue falls within one of five 
No. 2017AP2217 

10

exceptions: (1) the issue is of great public importance; (2) the 

issue involves the constitutionality of a statute; (3) the issue 

arises often and a decision from this court is essential; (4) 

the issue is likely to recur and must be resolved to avoid

uncertainty; or (5) the issue is likely of repetition and evades 

review. Id.

¶20 The County argues that D.K.'s challenge to his 

commitment is moot because his commitment has expired and the 

issue does not fall in any of the exceptions. D.K. argues that 

the County forfeited its mootness argument. D.K. also argues 

that the issue is not moot because, even though the commitment 

expired, three collateral consequences of his commitment remain. 

First, D.K., having been committed under Wis. Stat. § 51.20, is 

liable for the costs of his care to the extent that he can pay. 

Wis. Stat. §§ 46.10(2)-(3). Second, D.K.'s involuntary 

commitment order prohibits him from possessing a firearm, which 

would otherwise be his right. U.S. Const. amend. II; Wis. 

Const. art. I, § 25. Third, D.K. cites the negative stigmas 

often attached to mental commitment as a lasting consequence.

¶21 The court of appeals addressed mootness in a footnote 

of its opinion. It concluded, "The [C]ounty 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)." D.K., 

No. 2017AP2217, unpublished slip op., ¶3 n.3. But the County 
No. 2017AP2217 

11

did argue mootness before this court. Accordingly, we do 

address the issue.

¶22 We have previously concluded that an expired initial 

commitment order is moot. Christopher S., 366 Wis. 2d 1, ¶30. 

However, the issue of collateral consequences' effect on an 

otherwise moot commitment was not raised in that case. Then in 

J.W.K., we specifically left open the question whether 

collateral consequences render an expired commitment not moot. 

We said, "Our holding that J.W.K.'s [challenge to his 

commitment] is moot is limited to situations where, as here, no 

collateral implications of the commitment order are raised." 

J.W.K., 386 Wis. 2d 672, ¶28 n.11. We said these collateral 

consequences may include a firearms ban, civil claims, and costs 

of care. Id. And now, in this case, D.K. has raised the issue 

of collateral consequences.

¶23 The idea that collateral consequences can render an 

otherwise moot issue not moot is nothing new in Wisconsin. Over 

40 years ago, in State v. Theoharopoulos, this court concluded 

that collateral consequences could render a prior criminal 

conviction not moot. 72 Wis. 2d 327, 240 N.W.2d 635 (1976). In 

that case, a criminal defendant challenged a prior conviction 

for which he had already served his sentence in full. Id. at 

329. We noted that the defendant's challenge faced a mootness 

hurdle. Id. at 332. But the defendant argued that the issue of 

his prior conviction was not moot. Id. Specifically, the 

defendant argued that his prior conviction was not moot because 

he was "being held on a detainer and may be subjected to the 
No. 2017AP2217 

12

further penalty of deportation because of the [prior 

conviction]." Id. at 333. We concluded the prior conviction 

was not moot because "on the face of the record, there [was] a 

causal relationship between the defendant's present confinement 

and the prior conviction which he wishes to attack." Id.; see 

also State v. Larkin, Nos. 2007AP1646 through 2007AP1650, 

unpublished slip op., ¶6 (Wis. Ct. App. Jul. 24, 2008) 

(concluding the defendant's "challenge to his completed 

sentences [was] not moot because he [was] still experiencing the 

collateral consequences of his convictions in the form of an 

enhanced federal sentence"); State v. Genz, No. 2016AP2475-CR, 

unpublished slip op., ¶10 (Wis. Ct. App. Jan. 30, 2018) (stating 

that a "'criminal case is moot only if it is shown that there is 

no possibility that any collateral legal consequences will be 

imposed on the basis of the challenged conviction.' . . . A 

challenge to a conviction is not moot because the relief sought 

would free a defendant from all consequences flowing from his or 

her conviction") (citing Sibron v. New York, 392 U.S. 40, 57 

(1968); Lane v. Williams, 455 U.S. 624, 630 (1982)). 

¶24 Of course, this is not a criminal case. But the logic 

of Theoharopoulos is just as sound here. In this case, there is 

a "causal relationship between" D.K.'s firearms ban and the 

civil commitment "which he wishes to attack." Theoharopoulos, 

72 Wis. 2d at 333. The circuit court's commitment order says:

The subject is prohibited from possessing any firearm. 

Federal law provides penalties for, and you may be 

prohibited from possessing, transporting, shipping, 

receiving, or purchasing a firearm, including, but not 
No. 2017AP2217 

13

limited to, a rifle, shotgun, pistol, revolver, or 

ammunition, pursuant to 18 U.S.C. 921(a)(3) and (4) 

and 922(g)(4). This prohibition shall remain in 

effect until lifted by the court. Expiration of the 

mental commitment proceeding does not terminate this 

restriction.

(Emphasis added.)

¶25 As a result of his civil commitment, D.K. is 

"prohibited from possessing any firearm." And the "[e]xpiration 

of the mental commitment proceeding [did] not terminate this 

restriction." Accordingly, though his commitment has expired, 

D.K. is still subject to the lasting collateral consequence of a 

firearms ban. Since D.K. would otherwise have a fundamental 

right to bear arms, this is no minor consequence. See U.S. 

Const. amend II; Wis. Const. art. I, § 25; see also District of 

Columbia v. Heller, 554 U.S. 570 (2008); Wisconsin Carry, Inc. 

v. City of Madison, 2017 WI 19, 373 Wis. 2d 543, 892 N.W.2d 233. 

On appeal, a decision in D.K.'s favor would void the firearms 

ban and therefore have a "practical effect." Thus, we conclude 

that D.K.'s commitment is not a moot issue because it still 

subjects him to the collateral consequence of a firearms ban.7 

We now proceed to the merits. 

B. Constitutional Rights And Commitment Proceedings

¶26 The Fifth Amendment declares that no person shall be 

"deprived of life, liberty, or property, without due process of 

 

7 Because we conclude that the firearms ban is itself 

sufficient to render D.K.'s commitment not moot, we need not 

address whether the collateral consequences of costs of care 

under Wis. Stat. § 46.10(2)-(3) or negative stigma would render 

the same result.
No. 2017AP2217 

14

law. . . . " U.S. Const. amend. V. "'[C]ommitment for any 

purpose constitutes a significant deprivation of liberty that 

requires due process protection.'" J.W.K., 386 Wis. 2d 672, ¶16 

(quoting Jones v. United States, 463 U.S. 354, 361 (1983)). 

Accordingly, civil commitment cases are to be handled with the 

utmost diligence and care. Two due process protections are 

implicated in D.K.'s case——the what, and the how of commitment 

cases.

¶27 First, due process dictates what the petitioner must 

prove for commitment to be appropriate. The petitioner must 

prove that the individual is both mentally ill and dangerous. 

O'Connor v. Donaldson, 422 U.S. 563, 576 (1975) ("In short, a 

State cannot constitutionally confine without more a 

nondangerous individual who is capable of surviving safely in 

freedom by himself or with the help of willing and responsible 

family members or friends.") It is not sufficient to show that 

the individual is mentally ill. Id. at 575. Nor is it 

sufficient to show "[m]ere public intolerance or animosity." 

Id.

¶28 Second, due process dictates how the petitioner must 

prove commitment is appropriate. The petitioner must prove that 

commitment is appropriate by clear and convincing evidence. 

Addington v. Texas, 441 U.S. 428, 432-33 (1979). The Supreme 

Court concluded that clear and convincing evidence is the 

appropriate burden of proof in commitment cases because the 

individual liberty at stake is of great "weight and gravity." 

Id. at 427. But, notably, the Supreme Court declined to adopt 
No. 2017AP2217 

15

the "beyond a reasonable doubt" standard in commitment cases 

because that standard lends itself to "specific, knowable 

facts." Id. at 430. Civil commitment cases do not. "The 

subtleties and nuances of psychiatric diagnosis render 

certainties virtually beyond reach in most situations." Id. 

The clear and convincing evidentiary standard balances the 

individual's significant liberty interest with the State's 

interests in "providing care to its citizens who are 

unable . . . to care for themselves" and "protect[ing] the 

community from the dangerous tendencies of some who are mentally 

ill." Id. at 425.

¶29 Accordingly, in a civil commitment case, due process 

requires the petitioner to prove by clear and convincing 

evidence that the individual is both mentally ill and dangerous. 

The Wisconsin Statutes codify the same and additional 

protections.

C. Statutory Interpretation

1. Wisconsin Stat. § 51.20 Commitment Proceedings Generally

¶30 We pause a moment to discuss the general statutory 

framework for involuntary commitment proceedings in Wisconsin. 

Then we will interpret and apply the particular section at issue 

in D.K.'s case. Involuntary commitment proceedings are 

controlled by Wis. Stat. § 51.20. Just last term, we described 

these proceedings:

To initiate commitment proceedings involving a 

mentally ill individual under Wis. Stat. § 51.20, the 

County must file a petition alleging the individual is 

(1) mentally ill and a proper subject for treatment, 
No. 2017AP2217 

16

and (2) "[t]he individual is dangerous." 

§ 51.20(1)(a)1-2; see also [Waukesha Cty. v. J.W.J., 

2017 WI 57, ¶18, 375 Wis. 2d 542, 895 N.W.2d 783]. 

The statute contains five standards by which the 

County may show the individual is dangerous. 

§ 51.20(1)(a)2.a.-e. Each requires the County to 

identify recent acts or omissions demonstrating that 

the individual is a danger to himself or to others. 

See id. During the final hearing, the County bears 

the burden of proving the allegations in the petition 

by clear and convincing evidence. § 51.20(13)(e); 

J.W.J., 375 Wis. 2d 542, ¶19, 895 N.W.2d 783. If the 

grounds in the petition are proven, then the court 

"shall" order commitment. § 51.20(13)(a)3; see also

M.J. v. Milwaukee Cty. Combined Cmty. Servs. Bd., 122 

Wis. 2d 525, 529-30, 362 N.W.2d 190 (Ct. App. 1984). 

The initial period of commitment cannot exceed six 

months. § 51.20(13)(g)1.

J.W.K., 386 Wis. 2d 672, ¶17.

¶31 In this case, the circuit court concluded that D.K. 

was mentally ill, a proper subject for commitment, and dangerous 

as defined under Wis. Stat. § 51.20(1)(a)2.b. D.K. disputes the 

circuit court's conclusion as to dangerousness only. This court 

has never before interpreted § 51.20(1)(a)2.b. We do so now. 

2. Wisconsin Stat. § 51.20(1)(a)2.b. Dangerousness

¶32 Pursuant to 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 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.

§ 51.20(1)(a)2.b.

¶33 In this case, the County argues there was clear and 

convincing evidence that D.K. presented "a substantial 
No. 2017AP2217 

17

probability of physical harm to other individuals as manifested 

by . . . evidence that others [were] placed in reasonable fear

of violent behavior and serious physical harm to them, as 

evidenced by a . . . threat to do serious physical harm." Wis. 

Stat. § 51.20(1)(a)2.b. Accordingly, we interpret that 

language, and that language only.

¶34 Statutory interpretation "begins with the language of 

the statute." State ex rel. Kalal v. Circuit Court for Dane 

Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (internal 

quotations omitted). If its meaning is plain, then our inquiry 

ends. Id. We give statutory language "its common, ordinary, 

and accepted meaning." Id. We give "technical or speciallydefined words or phrases" their "technical or special 

definitional meaning." Id. "Context is important to meaning." 

Id., ¶46. Accordingly, we interpret statutory language "not in 

isolation but as part of a whole." Id. For the whole statute 

to have meaning, we must "give reasonable effect to every word" 

and "avoid surplusage." Id.

¶35 While this court has never before interpreted the 

entirety of Wis. Stat. § 51.20(1)(a)2.b., Wisconsin courts have 

interpreted portions of the language included in this section. 

We begin with "substantial probability." In State v. Curiel, we 

interpreted the phrase "substantial probability" in Wis. Stat. 

§ 980.02(2)(c) (1995-96) and "substantially probable" in Wis. 

Stat. § 980.01(7) (1995-96). 227 Wis. 2d 389, 402-03, 597 

N.W.2d 697 (1999). We noted that both the legislature and 

courts use the two phrases interchangeably and concluded that 
No. 2017AP2217 

18

they "share a common meaning." Id. at 403. We then interpreted 

the plain language and concluded that the two phrases mean "much 

more likely than not." Id. at 406. Importantly, we connected 

this conclusion to the "substantial probability" language in ch. 

51. We explained:

Both ch. 980 and ch. 51 employ a "substantial 

probability" standard. We held that the term 

"substantially probable" as used in ch. 980 means 

"much more likely than not." As the terms are to be 

used in a consistent manner between the chapters, we 

can conceive of no reason why the term as used in ch. 

51 should be construed any differently than it is 

under ch. 980.

Id. at 414.8 We also noted that the legislature had amended Wis. 

Stat. § 51.20 in 1977. Id. at 410. It replaced "substantial 

risk" with "substantial probability." Id. In this case, the 

County did not dispute that "substantial probability" means 

"much more likely than not." We now reaffirm that "substantial 

probability" in Wis. Stat. § 51.20(1)(a)2.b. means "much more 

likely than not."

¶36 Under the plain language of the statute, evidence of a 

"substantial probability of physical harm to other individuals" 

must be "manifested by" "evidence of recent homicidal or other 

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 

 

8 Since our decision in State v. Curiel, 227 Wis. 2d 389, 

597 N.W.2d 697 (1999), the legislature has changed the language 

of both Wis. Stat. §§ 980.01(7) and 980.02(2)(c). Both sections 

now use the word "likely." See §§ 980.01(7) and 980.02(2)(c) 

(2015-16)..
No. 2017AP2217 

19

do serious physical harm." Wis. Stat. § 51.20(1)(a)2.b. 

Because the County argues that it presented clear and convincing 

evidence of "reasonable fear," we focus our interpretation on 

that portion of the statute.

¶37 In R.J. v. Winnebago County, the court of appeals 

interpreted "evidence that others are placed in reasonable fear 

of violent behavior and serious physical harm to them" in Wis. 

Stat. § 51.20(1)(a)2.b.——the same section at issue here. 146 

Wis. 2d 516, 431 N.W.2d 708 (Ct. App. 1988). In that case, R.J. 

argued that "them" meant only the individuals threatened. Id.

at 521. Under R.J.'s interpretation, there was no "reasonable 

fear" unless the threatened individual was subjectively aware of 

the threat. Id. The court of appeals correctly concluded that 

that interpretation was too narrow. Id. at 522. R.J.'s 

interpretation would have rendered insufficient evidence that a 

person was placed in reasonable fear of serious physical harm to 

another person. The court of appeals rejected that narrow 

interpretation of the statute. Id. Instead, it concluded that 

the statute was satisfied by "a showing . . . that others are 

placed in a fearsome position by a [mentally ill] person's 

actions even if the person placed in that position has no 

subjective awareness of it." Id. at 523. Neither party to this 

case challenges the court of appeals' interpretation in R.J. 

Rather, consistent with R.J., both parties agreed that 

Dr. Dave's testimony, as a third-party witness to D.K.'s alleged 

threat to harm others, could be sufficient to satisfy the 
No. 2017AP2217 

20

statute. They dispute only whether Dr. Dave's testimony 

actually was sufficient.

¶38 We conclude that the court of appeals' interpretation 

in R.J. is consistent with the plain language of Wis. Stat. 

§ 51.20(1)(a)2.b. Specifically, we conclude that a plain 

reading of the statute demonstrates that "them" in the second 

clause of that section refers back to "other individuals" in the 

first clause. See § 51.20(1)(a)2.b. ("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 . . . ") (emphasis added). Thus, under the plain language 

of the statute, evidence that a person was placed in reasonable 

fear of serious physical harm to that person or another person 

can be sufficient to establish a "reasonable fear" under 

§ 51.20(1)(a)2.b.

¶39 In his briefing and at oral argument, D.K. argued that 

the County could not prove dangerousness under Wis. Stat. 

§ 51.20(1)(a)2.b. without showing facts supporting an objective, 

"reasonable fear." Specifically, D.K. argued that the County 

did not prove that he was dangerous because there was no 

testimony to facts concerning his demeanor at the time he made 

his threats.

¶40 We agree with D.K. that Wis. Stat. § 51.20(1)(a)2.b. 

establishes an objective test. But our agreement ends there, 

and we decline to adopt D.K.'s interpretation. His 

interpretation would read out the first portion of 
No. 2017AP2217 

21

§ 51.20(1)(a)2.b. Under D.K.'s interpretation, evidence of 

"reasonable fear" would be both necessary and sufficient to 

establish "a substantial probability of physical harm." See

§ 51.20(1)(a)2.b. Put simply, a "reasonable fear" would equal a 

"substantial probability." That cannot be right for two 

reasons. First, the plain language of those two phrases 

suggests otherwise——different words require different meanings.9 

See State ex rel. DNR v. Wisconsin Court of Appeals, District 

IV, 2018 WI 25, ¶28, 380 Wis. 2d 354, 909 N.W.2d 114 ("When the 

legislature uses different terms in the same act, we generally 

do not afford them the same meaning.") Indeed, at oral 

argument, the County agreed that "the substantial probability is 

informed by the requirement of . . . threats that would put a 

reasonable person at fear of serious physical harm"; that those 

phrases must be given separate meaning in order to "harmonize" 

the statutory language. Second, if "reasonable fear" and 

"substantial probability" in § 51.20(1)(a)2.b. meant the same 

thing, then one or the other would be surplusage. We must 

interpret statutory language "to give reasonable effect to every 

word" and "avoid surplusage." Kalal, 271 Wis. 2d 633, ¶46; see 

also Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts, 174-79 (2012) ("Surplusage 

Canon"); id. at 174 ("If possible, every word and every 

 

9 Common sense suggests that "reasonable" is something less 

than "substantial." Thus, D.K.'s interpretation would likely 

provide less protection for the mentally ill than the one we 

adopt today.
No. 2017AP2217 

22

provision is to be given effect. . . . None should needlessly be 

given an interpretation that causes it to duplicate another 

provision or to have no consequence.").

¶41 We conclude that a finding of a "reasonable fear" 

supports a separate finding of a "substantial probability." In 

other words, evidence of a "reasonable fear" is necessary but 

not automatically sufficient alone to conclude there is a 

"substantial probability of physical harm" under Wis. Stat. 

§ 51.20(1)(a)2.b. A "reasonable fear" may, and perhaps often 

will, establish a "substantial probability." But it will not 

necessarily always end the analysis.

¶42 In sum, we conclude that the plain language of Wis. 

Stat. § 51.20(1)(a)2.b. requires a showing that it is much more 

likely than not that the individual will cause physical harm to 

other individuals. Id. This conclusion can be supported by

evidence that at least one person was placed in "reasonable fear 

of violent behavior and serious physical harm" to that same 

person or another.10 Id. This reasonable fear must be 

"evidenced by" a "recent overt act," an "attempt," or a "threat 

to do serious physical harm." Id.

¶43 We now proceed to decide the merits of D.K.'s case: 

whether there was clear and convincing evidence at the final 

hearing that D.K. was dangerous under Wis. Stat. 

§ 51.20(1)(a)2.b.

 

10 It can also be supported by "evidence of recent homicidal 

or other violent behavior" but that language is not at issue in 

this case. See Wis. Stat. § 51.20(1)(a)2.b.
No. 2017AP2217 

23

D. There Was Clear And Convincing Evidence of Dangerousness.

¶44 At the outset, we note that D.K. does not challenge 

any of the circuit court's factual findings as clearly 

erroneous. Nor does D.K. challenge the circuit court's 

conclusions that D.K. had a mental illness and was a proper 

subject for commitment. Thus, we review the evidence presented 

at the final hearing and the circuit court's findings to decide 

whether there was clear and convincing evidence that D.K. was 

dangerous as defined under Wis. Stat. § 51.20(1)(a)2.b.

¶45 At the final hearing, corporation counsel 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." The clear meaning of Dr. Dave's 

testimony is that D.K. "presented a substantial risk of danger" 

"[t]o other people."

¶46 Dr. Dave then explained his conclusion. 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
No. 2017AP2217 

24

testified that D.K.'s threats were directly related to his 

delusional disorder.

¶47 The circuit court concluded:

[Dr. Dave] 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.

(Emphasis added.) The circuit court then confirmed that its 

conclusions fell under Wis. Stat. § 51.20(a)(1)2.b. D.K. does 

not challenge any of the circuit court's factual findings as 

clearly erroneous. 

¶48 When we review this record, it is uncontroverted that 

Dr. Dave witnessed D.K.'s threats to harm others and testified 

that he "plan[ned] on strangulating the police officer and also 

killing the people who made fun of him." Dr. Dave testified 

that D.K. presented a substantial risk of danger "[t]o other 

people." Additionally, the circuit court found that D.K. made 

threats to the police department and wanted to strangle police 

and kill people.

¶49 We conclude that Dr. Dave's testimony and the circuit 

court's factual findings established that D.K. was dangerous 

under Wis. Stat. § 51.20(1)(a)2.b. There was clear and 

convincing evidence that D.K. "[e]vidence[d] a substantial 

probability of physical harm to other individuals as manifested 

by . . . evidence that others [were] placed in reasonable fear 
No. 2017AP2217 

25

of violent behavior and serious physical harm to them, as 

evidenced by a . . . threat to do serious physical harm." 

§ 51.20(1)(a)2.b.

¶50 D.K. argues that this evidence is negated by 

statements Dr. Dave made during cross-examination. See Pucci v. 

Rausch, 51 Wis. 2d 513, 519, 187 N.W.2d 138 (1971) (stating that 

"an expert opinion expressed in terms of possibility or 

conjecture is insufficient"). Specifically, D.K. argues that 

certain statements Dr. Dave made failed to establish a 

"substantial probability." Dr. Dave stated that D.K.: "could be 

potentially dangerous"; "can become potentially dangerous"; 

"could be still potentially dangerous"; "probably may have 

acted"; and "most possibly . . . might act." Dr. Dave also 

stated, "I don't think I can make [a] difference whether he will 

act on his thoughts or not." 

¶51 We agree with D.K. that this equivocal testimony alone 

would be at least arguably insufficient to establish a 

"substantial probability." We will not attempt to discern what

the phrases "probably may have acted" or "most 

possibly . . . might act" mean. We need not so attempt because 

we do not review Dr. Dave's statements in isolation. Rather, we 

review his testimony and the circuit court's findings as a 

whole. As we concluded above, Dr. Dave's testimony on directexamination established clear and convincing evidence that D.K. 

was dangerous under Wis. Stat. § 51.20(1)(a)2.b. And his 

testimony as a whole supports that conclusion. Dr. Dave 

testified that D.K. presented a substantial risk of danger "to 
No. 2017AP2217 

26

other people." He never negated or withdrew his conclusion that 

D.K. was dangerous.

¶52 While mere possibility and conjecture are 

insufficient, we will not disregard Dr. Dave's testimony simply 

because he expressed something less than certainty. The statute 

does not require certainty, but rather a "substantial 

probability." Wis. Stat. § 51.20(a)(1)2.b. Furthermore, we 

have never required a mental illness expert to be clairvoyant 

and we decline to do so now. See Addington, 441 U.S. at 430 

("The subtleties and nuances of psychiatric diagnosis render 

certainties virtually beyond reach in most situations."); see 

also D.K., No. 2017AP2217, unpublished slip op., ¶9 ("To the 

extent that [D.K.] criticizes [Dr.] Dave's testimony as 

'speculat[ive],' Wis. Stat. § 51.20(1)(a)2.b. did not require 

[Dr.] Dave, in providing an expert opinion, to be clairvoyant of 

[D.K.'s] future acts in order to establish a 'substantial 

probability' of harm due to [D.K.'s] recent threats and his 

medical diagnosis.")

¶53 D.K. also argues that Dr. Dave's testimony was 

insufficient under Outagamie County v. Melanie L., 2013 WI 67, 

349 Wis. 2d 148, 833 N.W.2d 607. In that case, we reversed an 

involuntary medication order under Wis. Stat. § 51.61(1)(g)4.b. 

Id., ¶¶96-97. Under that section, the county "must prove that 

the person is substantially incapable of applying an 

understanding of the advantages and disadvantages of particular 

medication . . . ." Id., ¶94. We reversed because the expert 

in that case misstated the substance of the statutory standard. 
No. 2017AP2217 

27

The expert testified that Melanie was not "'capable of applying 

the benefits of the medication to her advantage' rather than 

that she was substantially incapable of applying an 

understanding of the advantages, [and] disadvantages" of the 

medication. Id., ¶6. We concluded that the county did not meet 

its burden of proof because the expert's testimony "did not 

sufficiently address and meet the statutory standard." Id., 

¶97. We explained:

Medical experts must apply the standards set out in 

the competency statute. An expert's use of different 

language to explain his or her conclusions should be 

linked back to the standards in the statute.

Id.

¶54 D.K. uses Melanie L. to argue that Dr. Dave was 

required to testify to the exact statutory standard and that his 

statements on cross-examination were therefore insufficient. 

But the issue in Melanie L. was that the expert's testimony 

misstated the substance of the statutory standard. That is not 

true here. Dr. Dave did not misstate the substance of the 

standard; he merely failed to recite it exactly. Melanie L.

does not stand for the proposition that we require witnesses or 

circuit courts to recite magic words. Rather, it stands for the 

proposition that a medical expert's testimony and conclusions 

"should be linked back to the standards in the statute." 

Melanie L., 349 Wis. 2d 148, ¶97. Dr. Dave testified that D.K.: 

was paranoid and suffered from delusions; presented a 

"substantial risk of danger" "to other people"; and "plan[ned]

on strangulating the police officer and also killing" other 
No. 2017AP2217 

28

people. (Emphasis added.) This is not the exact statutory 

language, but it does "link back" to it. See Wis. Stat. 

§ 51.20(1)(a)2.b. (requiring a "substantial probability of 

physical harm to other individuals as manifested 

by . . . evidence that others [were] placed in reasonable fear 

of violent behavior and serious physical harm to them, as 

evidenced by a . . . threat to do serious physical harm") 

(emphasis added).

¶55 We pause once more to speak to the bench and the bar. 

We do so because finality in a commitment proceeding is very 

important to all concerned. D.K.'s commitment expired in 

November 2017, and he will not have a final answer to the 

question whether his commitment was appropriate until 2020. Had 

certain things happened in the circuit court below, perhaps 

D.K.'s appeal would have been unnecessary. The record was 

sufficient in this case, but it could have been more detailed. 

The County could have further developed its medical expert's 

testimony, moved the expert's report into evidence, and properly 

provided notice of its witnesses. Also, the circuit court could 

have made more detailed and thorough factual findings and 

clarified its legal conclusions. A commitment is no trivial 

matter. Taking more time at the circuit court can save years of 

uncertainty on appeal.

V. CONCLUSION

¶56 We conclude that D.K.'s commitment is not a moot issue 

because it still subjects him to a firearms ban. We also 
No. 2017AP2217 

29

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.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2017AP2217.rgb

1

¶57 REBECCA GRASSL BRADLEY, J. (concurring). I agree 

with the majority that when a commitment order infringes the 

individual right to bear arms with a restriction that remains in 

effect even after expiration of the commitment, a challenge to 

an involuntary commitment is not moot merely because the order 

has expired. I also agree with the majority's conclusion that 

there was clear and convincing evidence at the commitment 

hearing of D.K.'s dangerousness under Wis. Stat. 

§ 51.20(1)(a)2.b (2015-16). Majority op., ¶3.1 However, I write 

separately because I disagree with the majority's methodology of 

statutory analysis. Instead of relying exclusively on 

precedent, the majority should have analyzed and applied the 

plain meaning of the statutory text. Accordingly, I 

respectfully concur and I join parts I, II, III, IV.A, IV.B, and 

IV.C.1 of the majority opinion. 

I 

¶58 Resolving D.K.'s challenge requires interpretation of 

Wis. Stat. § 51.20(1)(a)2.b. Whenever we construe a statute, we 

"begin[] with the language of the statute." State ex rel. Kalal 

v. Circuit Court of Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 

681 N.W.2d 110 (quoted source omitted). If the meaning of the 

statute is plain and unambiguous, we stop the inquiry. See id.

(citations omitted). While the majority recites these seminal 

principles of statutory interpretation, see majority op., ¶34, 

it only superficially applies them, opting to discuss past 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2015-16 version unless otherwise indicated.
No. 2017AP2217.rgb

2

precedent rather than conducting a thorough textual analysis. 

See majority op., ¶¶35-37. I begin with the text of § 51.20. 

¶59 In order for a county to involuntarily commit an 

individual under Wis. Stat. § 51.20, a court must find that the 

individual is: (1) mentally ill; (2) a proper subject for 

treatment; and (3) dangerous. § 51.20(1)(a)1-2; see also

Waukesha Cty. v. J.W.J., 2017 WI 57, ¶18, 375 Wis. 2d 542, 895 

N.W.2d 783 (quoted source omitted). Wisconsin Stat. 

§ 51.20(1)(a)2.a-e provides an exclusive list of five alternate 

means of establishing the requisite dangerousness. An 

individual is dangerous under the statute if he: 

(a) "Evidences 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."

(b) "Evidences 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." 

(c) "Evidences such impaired judgment, manifested by 

evidence of a pattern of recent acts or omissions, 

that there is a substantial probability of physical 

impairment or injury to himself or herself or other 

individuals."
No. 2017AP2217.rgb

3

(d) "Evidences behavior manifested by recent acts or

omissions that, due to mental illness, he or she is 

unable to satisfy basic needs for nourishment, medical 

care, shelter or safety without prompt and adequate 

treatment so that a substantial probability exists 

that death, serious physical injury, serious physical 

debilitation, or serious physical disease will 

imminently ensue unless the individual receives prompt 

and adequate treatment for this mental illness."

(e) "[E]vidences 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 
No. 2017AP2217.rgb

4

cognitive or volitional control over his or her 

thoughts or actions."

§ 51.20(1)(a)2.a-e.

¶60 Both parties agree that subdivision 2.b is the only 

provision at issue in D.K.'s case and both the court of appeals 

and the circuit court analyzed dangerousness under that 

subdivision. Because the text of subdivision 2.b is plain and 

unambiguous, my review of whether D.K. was dangerous begins and 

ends with the text.

¶61 Proving dangerousness under subdivision 2.b requires 

showing a "substantial probability of physical harm to other 

individuals[.]" Wis. Stat. § 51.20(1)(a)2.b. This court has 

already determined that "substantial probability" means "much 

more likely than not." State v. Curiel, 227 Wis. 2d 389, 413-

14, 597 N.W.2d 697 (1999). Subdivision 2.b provides three 

exclusive ways to demonstrate a person is much more likely than 

not to physically harm other individuals: 

(1) "evidence of recent homicidal" . . . behavior;

(2) evidence of recent "other violent behavior"; or

(3) "evidence that others are placed in reasonable fear of 

violent behavior and serious physical harm to them[.]"2

 

2 In R.J. v. Winnebago Cty., the court of appeals determined 

the word "them" did not refer only to the individual threatened, 

but also included any member of the "great mass of humankind" in 

the class of people denoted "others" by the statute. 146 

Wis. 2d 516, 521-23, 431 N.W.2d 708 (Ct. App. 1988). Because 

R.J. is a published court of appeals opinion, and this court has 

never overruled it, its holding stands as binding law in this 

state. See Wis. Stat. § 752.41(2). Neither party asks us to 

overrule it.
No. 2017AP2217.rgb

5

§ 51.20(1)(a)2.b. D.K.'s case involves the third way——"others 

[were] placed in reasonable fear of violent behavior and serious 

physical harm to them[.]" The statute lists three alternate

means of evidencing a "reasonable fear of violent behavior and 

serious physical harm": 

(1) "[A] recent overt act";

(2) A recent "attempt"; or

(3) A recent "threat to do serious physical harm."

Id. 

¶62 The text of subdivision 2.b plainly describes what is 

necessary to find a person dangerous. The record must evidence 

a "recent overt act," a recent "attempt," or a recent "threat to 

do serious physical harm." Any one of these three factual 

predicates suffices to show that others were "placed in

reasonable fear of violent behavior and serious physical 

harm[.]" Establishing a "reasonable fear of violent behavior 

and serious physical harm" is one way of demonstrating a 

"substantial probability of physical harm to other 

individuals[.]" Establishing a "substantial probability of 

physical harm to other individuals" is one way of showing a 

person is dangerous within the meaning of Wis. Stat. 

§ 51.20(1)(a)2. The analysis is complete. As evidence of 

"others" being "placed in reasonable fear of violent behavior 

and serious physical harm to them[]" a "threat to do serious 

physical harm[]" constitutes satisfactory evidence of 

dangerousness; the statutory standard is met.
No. 2017AP2217.rgb

6

¶63 The majority asserts that "evidence of a 'reasonable 

fear' is necessary but not automatically sufficient alone to 

conclude there is a 'substantial probability of physical 

harm[.]'" Majority op., ¶41. The majority misunderstands the 

statute. The legislature decided that, among other proof, 

"evidence that others are placed in reasonable fear of violent 

behavior and serious physical harm to them[]" constitutes one of 

the manifestations that a person "evidences a substantial 

probability of physical harm to other individuals[.]" Wis. 

Stat. § 51.20(1)(a)2.b. In other words, the legislature 

defined, with some particularity, what establishes "a 

substantial probability of physical harm" to others and included 

"others" being "placed in reasonable fear of violent behavior 

and serious physical harm" as evidence meeting that standard. 

¶64 Puzzlingly, the majority believes this interpretation 

equates "reasonable fear" and "substantial probability" and, 

along with the dissent, invokes the surplusage canon. Neither 

the majority nor the dissent explain their accusations of 

duplication. In its analysis, the majority neglects to consider 

the context and structure of the statute. While the legislature 

embedded many layers in the determination of dangerousness, the 

language it used plainly says an individual is dangerous if he 

"[e]vidences a substantial probability of physical harm to other 

individuals" and a "substantial probability of physical harm" 

may be manifested by "evidence that others are placed in 

reasonable fear of violent behavior and serious physical harm to 

them," which in turn may be evidenced by three separate actions: 
No. 2017AP2217.rgb

7

(1) a recent overt act; (2) an attempt to do serious physical 

harm; or (3) a threat to do serious physical harm. This 

interpretation of the statute gives effect to every word and 

every provision, ignoring none. In contrast, the majority 

offers no explanation for its conclusory assertion that "[a] 

'reasonable fear' may, and perhaps often will, establish a 

'substantial probability[]' [b]ut . . . not necessarily 

always[.]" Majority op., ¶41. As a result of this equivocation 

by the majority, future litigants and courts may ponder when a 

"reasonable fear" may or may not establish "a substantial 

probability of physical harm" but the legislature already told 

us——in the statutory language.

II

¶65 D.K. argues that Dr. Dave's testimony at the final 

hearing was insufficient to meet the legal standard of 

dangerousness under subdivision 2.b. Because Dr. Dave 

repeatedly used phrases such as "could be potentially 

dangerous[,]" "can become potentially dangerous[,]" "could be 

still potentially dangerous[,]" and "I don't think I can make 

the difference whether he will act on his thoughts or not[,]" 

D.K. argues the evidence was insufficient to find him 

"substantial[ly] probab[le]" or "much more likely than not" to 

"physically harm other individuals[.]" See Wis. Stat. 

§ 51.20(1)(a)2.b; Curiel, 227 Wis. 2d at 413-14.

¶66 Both D.K. and the dissent would impose an obligation 

on medical experts to use particular statutory terms in 
No. 2017AP2217.rgb

8

expressing their opinions.3 We do not impose a "magic words" 

requirement in the law and this court has repeatedly rejected 

them. See State v. Lepsch, 2017 WI 27, ¶36, 374 Wis. 2d 98, 892 

N.W.2d 682 (rejecting in the context of a circuit court 

inquiring about juror bias); State v. Wantland, 2014 WI 58, ¶33, 

355 Wis. 2d 135, 848 N.W.2d 810 (rejecting in context of 

withdrawing consent under the Fourth Amendment); Elections Bd. 

v. Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650, 654, 669-70, 597 

N.W.2d 721 (1999) (rejecting in context of what is required to 

be "express advocacy"); see also Patchak v. Zinke, 138 S. Ct. 

897, 905 (2018) (noting that the Supreme Court refrains from 

reading statutes to "incant magic words" (quoted source 

omitted)). The dissent asserts that "risk" is not synonymous 

with "probability" and because Dr. Dave testified to a 

substantial risk of danger, and not a substantial probability, 

there was not clear and convincing evidence of dangerousness 

under the statute. See dissent, ¶¶79, 81, 83, 84.

¶67 The dissent is correct that risk and probability have 

different meanings. See Risk, Black's Law Dictionary (11th ed. 

2019) ("The uncertainty of a result, happening, or loss; the 

chance of injury, damage, or loss; esp., the existence and 

extent of the possibility of harm[.]"); Probability, Black's Law 

 

3 The dissent relies on Outagamie Cty. v. Melanie L., 2013 

WI 67, 349 Wis. 2d 148, 833 N.W.2d 607, for the proposition that 

medical experts must testify to the specific words set forth in 

Wis. Stat. § 51.20(1)(a)2.b. See dissent, ¶¶85-87. To the 

extent Melanie L. can be read to impose such a "magic words"

requirement, I would clarify its holding and align it with our 

other jurisprudence. See supra ¶66.
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Dictionary (11th ed. 2019) ("Something that is likely; what is 

likely[]"; "The degree to which something is likely to occur, 

often expressed mathematically; Possibility[]"; "The quality, 

state, or condition of being more likely to happen or to have 

happened than not; the character of a proposition or supposition 

that is more likely true than false."). Contrary to the 

dissent's conclusion, this distinction is not dispositive. The 

dissent erroneously conflates the role of the court and the role 

of the medical expert in commitment cases. While the medical 

expert testifies to the facts, the circuit court makes an

independent legal judgment as to whether the facts meet the 

legal standard set forth in the commitment statute. 

¶68 Contrary to the arguments of the dissent and D.K., it 

is immaterial that the medical expert used "substantial risk" or 

variants of "could be potentially dangerous[.]" It is the 

court's responsibility to determine whether the testimony and 

other evidence support a finding of a "substantial probability 

of physical harm" as required by the statute.4 Cf. Winnebago 

Cty. v. Christopher S., 2016 WI 1, ¶50, 366 Wis. 2d 1, 878 

N.W.2d 109 (discussing how courts must apply facts to the legal 

statutory standard).

 

4 Because circuit courts bear the responsibility of 

determining whether the evidence satisfies the statutory 

standard, circuit courts must expressly make independent factual 

findings on the record, separate from any legal conclusions. 

Merely reciting testimony or melding factual findings with legal 

conclusions can constrain appellate review. Because appellate 

courts overturn only factual findings that are "clearly 

erroneous," there must be distinct separation of factfinding

from legal conclusions. Cf. Winnebago Cty. v. Christopher S., 

2016 WI 1, ¶50, 366 Wis. 2d 1, 878 N.W.2d 109 (discussing the 

standard of review in commitment cases).
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¶69 Due to the significant deprivation of liberty 

associated with an involuntary commitment, due process requires 

that the evidence be clear and convincing. Addington v. Texas, 

441 U.S. 418, 433 (1979). The evidence at the final hearing in 

D.K.'s case clearly and convincingly supported the circuit 

court's determination that D.K. was dangerous based on D.K. 

evidencing "a substantial probability of physical harm to other 

individuals[.]" Most importantly, the circuit court found that 

D.K. "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." D.K. does not challenge 

this finding as clearly erroneous. As this factual finding 

involves a recent "threat to do serious physical harm[,]" made 

to Dr. Dave, it alone is sufficient to find that "others are 

placed in a reasonable fear of violent behavior and serious 

physical harm to them," which is enough to find "a substantial 

probability of physical harm to other individuals[.]" See Wis. 

Stat. § 51.20(1)(a)2.b; supra ¶¶61-62. 

¶70 While this threat alone was sufficient for the circuit 

court to find D.K. dangerous under subdivision 2.b, it also 

found: (1) D.K. had homicidal thoughts; (2) D.K. has a mental 

illness that causes delusional disorders; and (3) D.K.'s 

delusions affected D.K.'s ability to recognize reality. The 

uncontroverted evidence introduced during the hearing also 

demonstrated that D.K.: (1) posed a substantial risk of danger 

to "other people"; (2) had plans to strangle police and kill 

those individuals making fun of him; (3) "could be potentially 
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dangerous"; (4) had feelings of persecution; and (5) was at risk 

of acting on his violent thoughts because they are a product of 

his delusions and he is unable to recognize reality. 

¶71 The circuit court's factual findings that D.K. "has 

made threats to the police department" and "that he wanted to 

strangle police and kill people[]" alone render D.K. dangerous 

under Wis. Stat. § 51.20(1)(a)2.b. The additional factual 

findings, and uncontroverted hearing testimony in the record, 

provide additional clear and convincing evidence of D.K.'s

dangerousness.

III

¶72 The majority is correct that this case is not moot. 

When a commitment order infringes the individual right to bear 

arms protected by the Second Amendment and the Wisconsin 

Constitution, a challenge to an involuntary commitment is not

moot if the firearm prohibition survives expiration of the 

commitment. See U.S. Const. amend. II; Wis. Const. Art. 1, 

§ 25. 

¶73 A textual analysis of Wis. Stat. § 51.20(1)(a)2.b 

shows the County established D.K.'s dangerousness. The circuit 

court's finding that D.K. "made threats to the police 

department[,]" is not clearly erroneous. These "threat[s] to do 

serious physical harm[,]" expressed to Dr. Dave, fulfill one of 

the factual predicates sufficient to show "that others are 

placed in a reasonable fear of violent behavior and serious 

physical harm to them[.]" That showing, in turn, satisfies one 

of the tests for dangerousness under § 51.20(1)(a)2——"a 
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substantial probability of physical harm to other 

individuals[.]" Because the majority's analysis fails to 

clearly apply the plain words of the statute, I respectfully 

concur. 

¶74 I am authorized to state that Justice DANIEL KELLY 

joins this concurrence. 
No. 2017AP2217.rfd

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¶75 REBECCA FRANK DALLET, J. (dissenting). There is no 

dispute that D.K. suffered from delusional disorder and that he 

made statements regarding plans to strangle a police officer and 

to kill people that he perceived to be making fun of him. The 

issue is whether the County presented sufficient evidence that 

D.K. was dangerous as a result of his disorder. In concluding 

that the testimony of Dr. Dave was sufficient to establish that 

D.K. was dangerous, the majority ignores the statutory standard 

set forth in Wis. Stat. § 51.20(1)(a)2.b. and implicitly 

overrules this court's holding in Melanie L. requiring medical 

experts to apply that statutory standard. Outagamie Cty. v. 

Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607. For 

this reason, I dissent.

¶76 The United States Supreme Court has acknowledged that 

involuntary commitment is "'a massive curtailment of liberty' 

and in consequence 'requires due process protection.'" Vitek v. 

Jones, 445 U.S. 480, 491-92 (1980) (citation omitted). Because 

of the significant liberty interest involved in civil commitment 

cases, the standard of proof of clear and convincing evidence is 

required to meet due process guarantees. Addington v. Texas, 

441 U.S. 418, 432-33 (1979). "This Court has mandated 

an intermediate standard of proof——'clear and convincing 

evidence'——when the individual interests at stake in a state 

proceeding are both 'particularly important' and 'more 

substantial than mere loss of money.'" Santosky v. Kramer, 455 

U.S. 745, 756 (1982) (quoting Addington, 441 U.S. at 424).
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¶77 To commit an individual pursuant to Wis. Stat. 

§ 51.20(1)(a)2.b., a county must prove by clear and convincing 

evidence that an individual is dangerous because he or she:

Evidences 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. 

(Emphasis added.) Whether the facts in the record satisfy the 

statutory standard for commitment under § 51.20(1)(a)2.b. is a 

question of law which this court reviews de novo. Waukesha Cty. 

v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783.

¶78 I agree with the majority's statutory analysis of Wis. 

Stat. § 51.20(1)(a)2.b., see majority op. ¶¶30-42, because it 

gives effect to every statutory term, unlike the concurrence's 

analysis which renders the standard of "substantial probability" 

surplusage. However, I part ways with the majority as to 

whether there was clear and convincing evidence presented to the 

circuit court that D.K. "evidence[d] a substantial probability 

of physical harm." 

¶79 The majority relies solely on Dr. Dave's testimony on 

direct examination1 to support its conclusion that D.K. 

"[e]vidences a substantial probability of physical harm to other 

 

1 As the majority correctly notes, the County did not move 

Dr. Dave's report into evidence at the hearing and therefore it 

is not part of the record. Majority op., ¶6 & n.4. 
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individuals."2 Dr. Dave was asked the following question on 

direct examination regarding the likelihood of D.K.'s current 

dangerousness: "Based on your interview of [D.K.], were you 

able to form an opinion as to whether or not [D.K.] had 

presented a substantial risk of danger to either himself or 

others?" Dr. Dave answered: "To other people." 

¶80 The majority opinion pays lip service to the 

importance of reviewing Dr. Dave's testimony "as a whole," yet 

ignores his testimony on cross-examination, which it concedes 

was "at least arguably insufficient to establish a 'substantial 

probability.'" Majority op., ¶51. Dr. Dave stated on crossexamination that he was not aware of any times that D.K. had 

acted on his thoughts. When asked about the likelihood that 

D.K. would act on his thoughts, Dr. Dave opined that: D.K. "can

act" on his thoughts; he "can become potentially dangerous"; he 

"could be still potentially dangerous"; and he "probably may

have acted" on his thoughts. When asked whether Dr. Dave could 

tell "whether or not he was saying something [D.K.] was going to 

act on or maybe [was] just speaking in anger," Dr. Dave 

responded "I don't think I can make the difference whether he 

will act on his thoughts or not." These statements do not 

support a finding by clear and convincing evidence that D.K. was 

 

2 While the circuit court's factual findings in this case 

are scant, they are not clearly erroneous. See Outagamie Cty. 

v. Melanie L., 2013 WI 67, ¶38, 349 Wis. 2d 148, 833 N.W.2d 607

("We will not disturb a circuit court's factual findings unless 

they are clearly erroneous.").
No. 2017AP2217.rfd

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dangerous in accordance with the statutory mandate of 

"substantial probability." 

¶81 But even if, like the majority, I only consider Dr. 

Dave's testimony on direct examination, the record is still 

insufficient to support a finding that D.K. evidences a 

"substantial probability of physical harm to other individuals." 

The majority says the "clear meaning" of Dr. Dave's direct 

examination testimony "is that D.K. 'presented a substantial 

risk of danger' '[t]o other people.'" Majority op., ¶45. But 

what exactly is "a substantial risk of danger"? At first blush, 

it looks similar to the language of Wis. Stat. 

§ 51.20(1)(a)2.b.: "substantial probability of physical harm." 

However, a deeper look reveals important distinctions. 

¶82 As noted by the majority opinion, the legislature 

amended Wis. Stat. § 51.20 in 1977 to replace "'substantial 

risk'" with "'substantial probability,'" signifying that there 

is a difference in meaning between these terms. See Richards v. 

Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 

N.W.2d 581 ("By analyzing the changes the legislature has made 

over the course of several years, we may be assisted in arriving 

at the meaning of a statute."). We recognized in Curiel that 

"there is no evidence that when the legislature amended Wis. 

Stat. § 51.20 in 1977 and replaced 'risk' with 'probability,' it 

did so with a view that 'probability' and 'risk' were 

synonymous." State v. Curiel, 227 Wis. 2d 389, 410, 597 N.W.2d 

697 (1999); see § 29, ch. 428, Laws of 1977; Drafting File for 
No. 2017AP2217.rfd

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1977 Act 428, Analysis by the Legislative Reference Bureau of 

1977 A.B. 898, Legislative Reference Bureau, Madison, Wis.

¶83 Moreover, the term "substantial risk" has a meaning 

distinct from the term "substantial probability." This court 

often uses dictionary definitions to ascertain the meaning of 

words and phrases not defined by statute. Curiel, 227 Wis. 2d 

at 404. The Merriam Webster Dictionary defines "risk" as a 

"possibility of loss or injury." "Risk," Merriam Webster Online 

Dictionary (2020), https://www.merriam-webster.com/dictionary/

risk (emphasis added). "Possible" is defined as "being 

something that may or may not occur." "Possible," Merriam 

Webster Online Dictionary (2020), https://www.merriamwebster.com/dictionary/possible. The common usage of the words 

testified to by Dr. Dave is that D.K. evidences a danger to 

other people that may or may not occur. In contrast, this court 

has defined "substantial probability," as "much more likely than 

not." Curiel, 227 Wis. 2d at 406. 

¶84 Possibility and probability are not, as the majority 

opinion assumes, simply interchangeable. This court has often 

said an expert opinion expressed in terms of possibility or 

conjecture is insufficient. See Pucci v. Rausch, 51 Wis. 2d 

513, 519, 187 N.W.2d 138 (1971) (citing to cases dating back to 

1904 for this proposition). The important distinction between 

possibility and probability was best described in Michalski v. 

Wagner, 9 Wis. 2d 22, 28, 100 N.W.2d 354 (1960), where we held 

that there was "no probative value" to a medical expert's 
No. 2017AP2217.rfd

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testimony that it was possible the accident caused the 

plaintiff's injury. We stated: 

Preponderance of mere possibilities is, of course, not 

the equivalent of a preponderance of probabilities. 

Mere possibilities leave the solution of an issue of 

fact in the field of conjecture and speculation to 

such an extent as to afford no basis for inferences to 

a reasonable certainty, and in the absence of at least 

such inferences there is no sufficient basis for a 

finding of fact.

Id. In a commitment case which carries an even higher burden of

proof, an opinion testifying to clear and convincing evidence of 

possibilities is likewise of no probative value. 

¶85 The majority concludes that a medical expert is not 

required to render an opinion to the standard set forth in Wis. 

Stat. § 51.20, and thus implicitly overrules Melanie L., 349 

Wis. 2d 148. In Melanie L., this court determined that a 

medical expert's opinion that Melanie L. was unable to apply an 

understanding "to her advantage" did not establish clear and 

convincing evidence of the statutory requirement that she be

"substantially incapable of applying an understanding of the 

advantages, disadvantages and alternatives" of medication. Id., 

¶96. We emphasized that "[m]edical experts must apply the 

standards set out in the competency statute" and that "[a]n 

expert's use of different language to explain his or her 

conclusions should be linked back to the standards in the 

statute." Id., ¶97 (emphasis added). We further determined 

that it is a county's burden to ensure that a medical expert 

applies the required standard: "[w]hen [corporation counsel] 

did not receive an answer in those [statutory] terms, he should 
No. 2017AP2217.rfd

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have required his witness to expound upon his answer, so that 

the circuit court and a reviewing court did not have to 

speculate upon [the doctor's] meaning." Id., ¶91. While no 

medical expert is required to be clairvoyant, and certainty is 

not required, Melanie L. signifies that a medical expert must 

testify to the standard set forth in § 51.20(1)(a)2.b. 

¶86 Here, as in Melanie L., Dr. Dave did not testify to 

the standards set forth in the competency statute and 

corporation counsel failed to clarify the testimony or introduce 

his report into evidence.3 The majority attempts to distinguish 

Melanie L. by claiming that Dr. Dave "did not misstate the 

substance of the standard; he merely failed to recite it 

exactly." Majority op., ¶54. Dr. Dave did exactly what the 

majority opinion identified as improper: he misstated the 

substance of the standard. The testimony of Dr. Dave using an 

alternate standard did not rise to the level of proof by clear 

and convincing evidence that D.K. evidences a "substantial 

probability of physical harm to other[s]" as mandated by Wis. 

Stat. § 51.20(1)(a)2.b. As this court warned in Melanie L., 

"[Wis. Stat. ch. 51] hearings cannot be perfunctory under the 

 

3 The majority opinion recognizes that the County "could 

have further developed its medical expert's testimony, moved the 

expert's report into evidence, and properly provided notice of 

its witnesses." Majority op., ¶55. We review only the record 

before us in a case, not the record that could have been made. 

See Covelli v. Covelli, 2006 WI App 121, ¶14, 293 Wis. 2d 707, 

718 N.W.2d 260 ("When reviewing fact finding, we search the 

record for evidence to support findings reached by the trial 

court, not for evidence to support findings the trial court did 

not but could have reached."). 
No. 2017AP2217.rfd

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law. Attention to detail is important." Melanie L., 349 

Wis. 2d 148, ¶94. 

¶87 Since the record before the circuit court reflects 

that the County's only witness did not render an opinion 

regarding D.K.'s likelihood of dangerousness as defined in Wis. 

Stat. § 51.20(1)(a)2.b., and as required by Melanie L., 349 

Wis. 2d 148, I would reverse and vacate the circuit court's 

order. 

¶88 For the foregoing reasons, I respectfully dissent. 

¶89 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this dissent.
No. 2017AP2217.rfd

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