2021 WI 9

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP1887

COMPLETE TITLE: In the matter of the mental commitment of 

K.E.K.:

Waupaca County,

 Petitioner-Respondent,

 v.

K.E.K.,

 Respondent-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 389 Wis. 2d 104,936 N.W.2d 405

(2019 – unpublished)

OPINION FILED: February 9, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: November 17, 2020 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Waupaca 

JUDGE: Vicki L. Clussman 

JUSTICES:

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

which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL 

BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a 

dissenting opinion, in which KAROFSKY, J., joined

NOT PARTICIPATING:

 

ATTORNEYS:

For the respondent-appellant-petitioner, there were briefs 

filed by Colleen D. Ball, assistant state public defender. There 

was an oral argument by Colleen D. Ball.

For the petitioner-respondent, there was a brief filed by 

David G. Been, Waupaca corporation counsel. There was an oral 

argument by David G. Been.
2021 WI 9

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP1887

(L.C. No. 2017ME44)

STATE OF WISCONSIN : IN SUPREME COURT

In the matter of the mental commitment of 

K.E.K.:

Waupaca County,

 Petitioner-Respondent,

 v.

K.E.K.,

 Respondent-Appellant-Petitioner.

FILED

FEB 9, 2021

Sheila T. Reiff

Clerk of Supreme Court

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

which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL 

BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a 

dissenting opinion, in which KAROFSKY, 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unpublished decision of the court of appeals, Waupaca Cnty. v. 

K.E.K., No. 2018AP1887, unpublished slip op. (Wis. Ct. App. 

Sept. 26, 2020), affirming the Waupaca County circuit court's1

 

1 The Honorable Vicki L. Clussman presided.
No. 2018AP1887 

2

order extending K.E.K.'s involuntary commitment2 pursuant to Wis. 

Stat. § 51.20(13)(g)3. (2017-18).3 

¶2 K.E.K. challenges the commitment extension arguing 

that Wis. Stat. § 51.20(1)(am), the statute upon which the 

County relied to prove K.E.K.'s dangerousness, is both facially 

unconstitutional and unconstitutional as applied to this case 

because the statute does not require a sufficient showing of 

current dangerousness as exhibited by recent acts of 

dangerousness.4 Specifically, she claims that the standard under 

 

2 Wisconsin Stat. § 51.20, as well as the case law, uses 

"recommitment" and "extension of a commitment" interchangeably, 

and we do as well. See Portage Cnty. v. J.W.K., 2019 WI 54, ¶1 

n.1, 386 Wis. 2d 672, 927 N.W.2d 509; see also Wis. Stat. 

§§ 51.20(13)(g)2r., 3. 

3 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.

4 We note that K.E.K.'s petition for review also included a 

question involving the circuit court's competency to exercise 

subject matter jurisdiction over K.E.K.'s extension proceeding. 

However, K.E.K. did not develop, nor discuss in any way, this 

argument in her briefs. Accordingly, we will not consider it. 

See Serv. Emp. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 

Wis. 2d 38, 946 N.W.2d 35 ("We do not step out of our neutral 

role to develop or construct arguments for parties; it is up to 

them to make their case."). 
No. 2018AP1887 

3

§ 51.20(1)(am) violates due process5 and equal protection of the 

laws6 and is thus unconstitutional on its face and as applied.7 

¶3 However, similar to an initial commitment, a 

recommitment requires a showing of mental illness and current 

dangerousness. A recommitment petition must "establish the same 

elements with the same quantum of proof" as an initial 

commitment. Waukesha Cnty. v. J.W.J., 2017 WI 57, ¶20, 375 

 

5 K.E.K. specifically alleges that Wis. Stat. § 51.20(1)(am) 

violates substantive due process. Substantive due process 

derives from the Fifth and Fourteenth Amendments to the United 

States Constitution. See U.S. Const. amend. V ("No person 

shall . . . be deprived of life, liberty, or property, without 

due process of law."); amend. XIV, § 1 ("[N]or shall any State 

deprive any person of life, liberty, or property, without due 

process of law."). "Substantive due process provides protection 

from 'certain arbitrary, wrongful government actions.'" State 

ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶57, 353 Wis. 2d 307, 

845 N.W.2d 373 (quoting State v. Schulpius, 2006 WI 1, ¶33, 287 

Wis. 2d 44, 707 N.W.2d 495). 

6 The right to equal protection of the laws arises from the 

Fourteenth Amendment to the United States Constitution. See

U.S. Const. amend. XIV, § 1 ("No State shall . . . deny to any 

person within its jurisdiction the equal protection of the 

laws."). 

7 K.E.K. also asserts that Wis. Stat. § 51.20(1)(am) 

violates the Privileges or Immunities Clause of the Fourteenth 

Amendment. The Privileges or Immunities Clause provides, "No 

State shall make or enforce any law which shall abridge the 

privileges or immunities of citizens of the United States." 

U.S. Const. amend. XIV, § 1. K.E.K. asserts that "when [her] 

brief invokes substantive due process, she is also invoking the 

Privileges or Immunities Clause." Beyond this cursory 

statement, she does not develop her argument based on the text 

and history of the Privileges or Immunities Clause. 

Accordingly, we will not develop this argument and decline to 

entertain K.E.K.'s Privileges or Immunities Clause claims. See

Vos, 393 Wis. 2d 38, ¶24.
No. 2018AP1887 

4

Wis. 2d 542, 895 N.W.2d 783. The initial commitment requires 

proof that the individual is mentally ill, a proper subject for 

treatment, and currently dangerous. See Wis. Stat. § 51.20(1); 

Portage Cnty. v. J.W.K., 2019 WI 54, ¶16, 386 Wis. 2d 672, 927 

N.W.2d 509. Section 51.20(1)(am) provides an alternative path 

to prove current dangerousness provided the evidence 

demonstrates "a substantial likelihood, based on the subject 

individual's treatment record, that the individual would be a 

proper subject for commitment if treatment were withdrawn." 

§ 51.20(1)(am). 

¶4 Accordingly, we conclude that K.E.K. is unable to 

prove that Wis. Stat. § 51.20(1)(am) cannot be enforced under 

any circumstances because due process and the statute both 

require a showing of mental illness and current dangerousness. 

As such, K.E.K.'s facial due process challenge fails. 

¶5 Moreover, Wis. Stat. § 51.20(1)(am) creates an 

alternative path to give counties a more realistic basis by 

which to prove current dangerousness when it is likely the 

committed individual would discontinue treatment if no longer 

committed. Thus, the state has a rational basis for treating 

those recommitted under § 51.20(1)(am) and those committed under 

§ 51.20(1)(a)2.e. differently. 

¶6 Finally, K.E.K.'s as-applied constitutional challenges 

are disguised sufficiency of the evidence challenges. Her 

argument is that she does not meet the statutory standard for 

dangerousness, not that Wis. Stat. § 51.20(1)(am) is 

unconstitutional when applied to K.E.K.'s specific facts. 
No. 2018AP1887 

5

¶7 Therefore, we conclude that Wis. Stat. § 51.20(1)(am) 

is facially constitutional and that K.E.K.'s as-applied 

constitutional challenges fail. Accordingly, we affirm the 

decision of the court of appeals. 

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶8 On November 22, 2017, Waupaca County (the County) 

filed an initial petition seeking to commit K.E.K. under Wis. 

Stat. § 51.20(1)(a)2.e., the "fifth standard."8 On December 8, 

 

8 The "fifth standard" provides that "an individual, other 

than an individual who is alleged to be drug dependent or 

developmentally disabled," is considered "dangerous" if:

after the advantages and disadvantages of and 

alternatives to accepting a particular medication or 

treatment have been explained to him or her and 

because of mental illness, evidences either 

incapability of expressing an understanding of the 

advantages and disadvantages of accepting medication 

or treatment and the alternatives, or substantial 

incapability of applying an understanding of the 

advantages, disadvantages, and alternatives to his or 

her mental illness in order to make an informed choice 

as to whether to accept or refuse medication or 

treatment; and evidences a substantial probability, as 

demonstrated by both the individual's treatment 

history and his or her recent acts or omissions, that 

the individual needs care or treatment to prevent 

further disability or deterioration and a substantial 

probability that he or she will, if left untreated, 

lack services necessary for his or her health or 

safety and suffer severe mental, emotional or physical 

harm that will result in the loss of the individual's 

ability to function independently in the community or 

the loss of cognitive or volitional control over his 

or her thoughts or actions. The probability of 

suffering severe mental, emotional or physical harm is 

not substantial under this subd.2.e. if reasonable 

provision for the individual's care or treatment is 

available in the community and there is a reasonable 
No. 2018AP1887 

6

2017, the circuit court held a jury trial on the County's 

petition for initial commitment. The jury entered the verdict 

that K.E.K. was mentally ill, a danger to herself and others, 

and a proper subject for treatment. On the basis of this jury 

verdict, the circuit court entered an Order of Commitment, 

committing K.E.K. for six months. 

¶9 On May 22, 2018, the County filed a petition seeking 

to extend K.E.K.'s commitment. The petition alleged: (1) K.E.K. 

was "currently under an order of commitment"; (2) K.E.K. was 

"mentally ill, developmentally disabled or drug dependent, and a 

proper subject for treatment"; (3) K.E.K. was "dangerous because 

there [was] a substantial likelihood, based on [K.E.K.'s] 

treatment record, that [K.E.K.] would be a proper subject for 

commitment if treatment were withdrawn"; and (4) that "a 

recommitment of [K.E.K. was] recommended . . . for the 

protection of society, [K.E.K.], or both." Attached to the 

petition was an evaluation conducted by K.E.K.'s case manager. 

 

probability that the individual will avail himself or 

herself of these services or if the individual is 

appropriate for protective placement under ch. 55. 

Food, shelter or other care that is provided to an 

individual who is substantially incapable of obtaining 

food, shelter or other care for himself or herself by 

any person other than a treatment facility does not 

constitute reasonable provision for the individual's 

care or treatment in the community under this 

subd.2.e. The individual's status as a minor does not 

automatically establish a substantial probability of 

suffering severe mental, emotional, or physical harm 

under this subd.2.e.

Wis. Stat. § 51.20(1)(a)2.e.
No. 2018AP1887 

7

In this evaluation, K.E.K.'s case manager states, in part, "[A]t 

this time, this worker believes that without a commitment, 

[K.E.K.] would leave the facility she is living at, stop taking 

her medications, and repeat all behaviors that were the cause of 

the filing for the commitment in 2017." 

¶10 The circuit court held a hearing on the extension 

petition on June 6, 2018.9 At the hearing, the court heard from 

the County's psychiatrist, who testified that K.E.K. "suffers 

from schizophrenia, paranoid type." He further opined about 

K.E.K.'s actions if K.E.K. were no longer committed:

Well, I've explained I do believe she's improved 

with her current treatment interventions care and safe 

keeping at this group home, Evergreen and with 

medications. But she has distinctive lack of insight 

into her mental illness and that impedes her treatment 

in general.

And so if she is off commitment or if treatment 

is withdrawn, she will, in my opinion, almost 

certainly stop her medications, she will almost 

certainly leave Evergreen. She mentioned to me that 

she would live with family in Illinois, but her mother 

cited advancing age, and just being uncomfortable with 

the stress of this, due to her mother's age. So I 

don't think she has any kind of set housing set-up. 

And I'm concerned that off mediations, which I believe 

she would stop them, and without stable housing, she 

would decompensate and become a proper subject for 

commitment, in my opinion, again.

The court also heard from K.E.K.'s case manager. She testified 

that she believed "an extension is warranted because without the 

treatment and care that [K.E.K.'s] receiving 

 

9 The day before the extension hearing, K.E.K. waived her 

right to a jury trial, instead opting for a bench trial. 
No. 2018AP1887 

8

currently, . . . [K.E.K.] will no longer take her medications, 

become more unstable, and potentially [sic] a danger to herself 

as a result of that." The court also heard from the manager of 

K.E.K.'s group home and K.E.K. herself. 

¶11 At the conclusion of the testimony, the circuit court 

found that K.E.K. would be a proper subject for recommitment. 

The court specifically found that "the county has met its 

burdens in showing that if treatment were withdrawn, that 

[K.E.K.] would be a proper subject for a commitment." Relying 

on the recommitment standard from Wis. Stat. § 51.20(1)(am), the 

court found that K.E.K. was currently dangerous and ordered her 

commitment be extended for 12 months. 

¶12 K.E.K. appealed the circuit court's commitment 

extension order, challenging the constitutionality of Wis. Stat. 

§ 51.20(1)(am). On September 26, 2019, the court of appeals 

affirmed, holding, in relevant part, that § 51.20(1)(am) does 

not violate due process facially nor as applied to K.E.K. 

K.E.K., No. 2018AP1887, ¶¶33-40, 46-50. 

¶13 On October 30, 2019, K.E.K. petitioned this court for 

review. We held the petition in abeyance pending resolution of 

Winnebago County v. C.S., 2020 WI 33, 391 Wis. 2d 35, 940 

N.W.2d 875. After this court's decision in C.S., K.E.K. filed a 

motion to amend her petition for review. Her new petition 

alleged that Wis. Stat. § 51.20(1)(am) violated due process, the 
No. 2018AP1887 

9

Fourteenth Amendment's Privileges or Immunities Clause,10 and the 

Equal Protection Clause. We granted K.E.K.'s motion to amend 

her petition and granted review. 

II. STANDARD OF REVIEW

¶14 K.E.K. brings facial and as-applied constitutional 

challenges to Wis. Stat. § 51.20(1)(am). A facial challenge 

claims the law is "unconstitutional on its face." League of 

Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97, 

¶13, 357 Wis. 2d 360, 851 N.W.2d 302 (quoting State v. Wood, 

2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63). "Under a 

facial challenge, the challenger must show that the law cannot 

be enforced under any circumstances." C.S., 391 Wis. 2d 35, ¶14 

(quoting Winnebago Cnty. v. Christopher S., 2016 WI 1, ¶34, 366 

Wis. 2d 1, 878 N.W.2d 109). A statute under review is presumed 

constitutional when challenged facially.11 Id.

 

10 As we stated above, K.E.K. did not develop this argument, 

and we do not address her Privileges or Immunities Clause claim. 

See supra, ¶2 n.7.

11 The parties dispute what burden of proof must be shown to 

prove a statute is unconstitutional. Relying on this court's 

precedent, the County argues that K.E.K. must prove the statute 

is unconstitutional beyond a reasonable doubt. See Winnebago 

Cnty. v. C.S., 2020 WI 33, ¶14, 391 Wis. 2d 35, 940 N.W.2d 875; 

Mayo v. Wis. Injured Patients & Families Comp. Fund, 2018 WI 78, 

¶27, 383 Wis. 2d 1, 914 N.W.2d 67. Relying on federal 

precedent, K.E.K. counters and argues that she must only make a 

"plain showing" or "clearly demonstrate" that the law violates 

the federal Constitution. See United States v. Morrison, 529 

U.S. 598, 607 (2000); Nat'l Fed'n of Indep. Bus. v. Sebelius, 

567 U.S. 519, 538 (2012). We need not resolve this dispute in 

this case because the law is constitutional under either 

standard. 
No. 2018AP1887 

10

¶15 "In contrast, in an as-applied challenge, we assess 

the merits of the challenge by considering the facts of the 

particular case in front of us 'not hypothetical facts in other 

situations.'" League of Women Voters, 357 Wis. 2d 360, ¶13 

(quoting Wood, 323 Wis. 2d 321, ¶13). "[W]hile we presume the 

statute is constitutional, 'we do not presume that the State 

applies statutes in a constitutional manner.'" Mayo v. Wis. 

Injured Patients & Families Comp. Fund, 2018 WI 78, ¶56, 383 

Wis. 2d 1, 914 N.W.2d 678 (quoting Tammy W-G. v. Jacob T., 2011 

WI 30, ¶48, 333 Wis. 2d 273, 797 N.W.2d 854). 

¶16 Under either type of challenge, "the constitutionality 

of a statute is a question of law we review de novo." C.S., 391 

Wis. 2d 35, ¶13. 

¶17 K.E.K.'s argument requires us to interpret Wis. Stat. 

§ 51.20(1)(am). "[S]tatutory interpretation is a question of 

law we review de novo." J.W.K., 386 Wis. 2d 672, ¶10. However, 

we have already interpreted § 51.20(1)(am). See id., ¶¶19, 23-

24. "[W]here a statute has been authoritatively interpreted by 

this court, the party challenging that interpretation must 

establish that our prior interpretation was 'objectively 

wrong.'" State v. Breitzman, 2017 WI 100, ¶5 n.4, 378 

Wis. 2d 431, 904 N.W.2d 93; see also Johnson Controls, Inc. v. 

Emp'rs Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 

N.W.2d 257; Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, 

¶45, 281 Wis. 2d 300, 697 N.W.2d 417. 
No. 2018AP1887 

11

III. ANALYSIS

¶18 K.E.K. is challenging her recommitment on the basis 

that Wis. Stat. § 51.20(1)(am) is unconstitutional facially and 

as applied. Section 51.20 "governs involuntary civil 

commitments for mental health treatment." State v. Dennis H., 

2002 WI 104, ¶14, 255 Wis. 2d 359, 647 N.W.2d 851. The statute 

"contains five different definitions or standards of 

dangerousness for purposes" of an initial commitment. Id.; 

see also § 51.20(1)(a)2.a.-e. After an initial commitment, a 

county can seek an extension of a commitment for "a period not 

to exceed one year." § 51.20(13)(g)1., 3. At a recommitment 

proceeding, a county may prove current dangerousness under 

either the five standards of dangerousness under 

§ 51.20(1)(a)2.a.-e. or under those five standards in 

combination with § 51.20(1)(am). J.W.K., 386 Wis. 2d 672, ¶18; 

Langlade Cnty. v. D.J.W., 2020 WI 41, ¶50, 391 Wis. 2d 231, 942 

N.W.2d 277. Pursuant to § 51.20(1)(am), a county has an 

alternative avenue for proving dangerousness at an extension 

proceeding:

If the individual has been the subject of inpatient 

treatment for mental illness . . . immediately prior 

to commencement of the proceedings as a result 

of . . . a commitment or protective placement ordered 

by a court under this section . . . the requirements 

of a recent overt act, attempt or threat to act under

par. (a)2.a. or b., pattern of recent acts or 

omissions under par. (a)2.c. or e., or recent behavior 

under par. (a)2. d. may be satisfied by a showing that 

there is a substantial likelihood, based on the 

subject individual's treatment record, that the 

individual would be a proper subject for commitment if 

treatment were withdrawn.
No. 2018AP1887 

12

Wis. Stat. § 51.20(1)(am). 

¶19 We later explained that this section works in 

combination with the five standards of dangerousness, 

specifically focusing on the standard set forth in Wis. Stat. 

§ 51.20(1)(a)2.d.:

[W]e focus on whether the introduced testimony meets 

the standard for dangerousness set by Wis. Stat. 

§ 51.20(1)(a)2.d., as viewed through the lens of 

§ 51.20(1)(am). That is, the testimony must provide 

sufficient evidence to support the conclusion that 

D.J.W. would be "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[,]" 

§ 51.20(1)(a)2.d., if treatment were withdrawn. 

§ 51.20(1)(am).

D.J.W., 391 Wis. 2d 231, ¶50. Accordingly, Wis. Stat. 

§ 51.20(1)(am) works in combination with the five standards to 

provide counties with an alternative avenue for proving 

dangerousness. 

¶20 K.E.K. argues that her recommitment is 

unconstitutional because Wis. Stat. § 51.20(1)(am): (A) 

violates her right to due process by allowing her to be 

committed without a showing of current dangerousness; (B) 

violates her right to equal protection of the law by allowing 

commitment under circumstances different than those existing 

under the fifth standard of dangerousness;12 and (C) is 

 

12 This court discussed the requirements for the fifth 

standard in Dennis H., stating: 
No. 2018AP1887 

13

unconstitutional as applied to the specific facts of her case. 

We disagree and uphold the statute against her due process, 

equal protection, and as-applied challenges. 

A. Due Process

¶21 K.E.K. argues that Wis. Stat. § 51.20(1)(am) violates 

her constitutional right to due process. K.E.K. asserts that 

§ 51.20(1)(am) does not require a showing of current 

dangerousness because it does not require the government to 

prove recent acts or omissions. However, this position 

misconstrues what § 51.20(1)(am) and due process require. 

Section 51.20(1)(am) is facially constitutional because it 

requires a showing of mental illness and current dangerousness, 

as due process demands. Accordingly, K.E.K. cannot show that 

§ 51.20(1)(am) "cannot be enforced under any circumstances."

 

The fifth standard permits commitment only when a 

mentally ill person needs care or treatment to prevent 

deterioration but is unable to make an informed choice 

to accept it. This must be "demonstrated by both the 

individual's treatment history" and by the person's 

"recent acts or omissions." Wis. Stat. 

§ 51.20(1)(a)2.e. [(1999-2000).] It must also be 

substantially probable that if left untreated, the 

person "will suffer severe mental, emotional or 

physical harm" resulting in the loss of the "ability 

to function independently in the community" or in the 

loss of "cognitive or volitional control." Id. Only 

then may the individual be found "dangerous" under the 

fifth standard.

State v. Dennis H., 2002 WI 104, ¶39, 255 Wis. 2d 359, 647 

N.W.2d 851.
No. 2018AP1887 

14

1. Wisconsin Stat. § 51.20(1)(am) requirements

¶22 Statutory interpretation "begins with the language of 

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

Cnty., 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 

specially-defined 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. 

¶23 However, when we have already authoritatively 

interpreted a statute, we are bound to follow that 

interpretation unless there is a special justification to depart 

from our earlier interpretation. See Johnson Controls, 264 

Wis. 2d 60, ¶94; Progressive N. Ins. Co., 281 Wis. 2d 300, ¶45. 

Because we already interpreted Wis. Stat. § 51.20(1)(am) in 

J.W.K., we must follow our previous interpretation of 

§ 51.20(1)(am). 

¶24 As we stated in J.W.K., at a recommitment proceeding, 

"the County may, as an alternative to the options outlined in 

§ 51.20(1)(a)2.a.-e., prove dangerousness by showing 'a 

substantial likelihood, based on the subject individual's 

treatment record, that the individual would be a proper subject 

for commitment if treatment were withdrawn.'" J.W.K., 386 
No. 2018AP1887 

15

Wis. 2d 672, ¶19. "[P]aragraph (am) functions as an alternative 

evidentiary path, reflecting a change in circumstances 

occasioned by an individual's commitment and treatment." Id. 

¶25 However, each recommitment, including those where the 

County utilizes Wis. Stat. § 51.20(1)(am), "requires the County 

to prove the same elements with the same quantum of proof 

required for the initial commitment." Id., ¶24. An initial 

commitment requires a county to prove that the individual is 

mentally ill, a proper subject for commitment, and currently 

dangerous. See § 51.20(1); J.W.K., 386 Wis. 2d 672, ¶16. We 

explained that:

The dangerousness standard is not more or less onerous 

during an extension proceeding; the constitutional 

mandate that the County prove an individual is both 

mentally ill and dangerous by clear and convincing 

evidence remains unaltered. Each extension hearing 

requires proof of current dangerousness. It is not 

enough that the individual was at one point a proper 

subject for commitment. The County must prove the 

individual "is dangerous." The alternate avenue of 

showing dangerousness under paragraph (am) does not 

change the elements or quantum of proof required. It 

merely acknowledges that an individual may still be 

dangerous despite the absence of recent acts, 

omissions, or behaviors exhibiting dangerousness 

outlined in § 51.20(1)(a)2.a.-e.

J.W.K., 386 Wis. 2d 672, ¶24 (citations omitted). 

¶26 Accordingly, as we authoritatively determined in 

J.W.K., Wis. Stat. § 51.20(1)(am) merely provides an alternative 

path for the County to prove current dangerousness——it does not 

change the requirement that the County prove, by clear and 

convincing evidence, that the individual is mentally ill, a 
No. 2018AP1887 

16

proper subject for treatment, and currently dangerous. Id. We 

reaffirm that determination. 

2. Due process and commitment proceedings

¶27 The Constitution forbids the government from 

"depriv[ing] any person of life, liberty, or property, without 

due process of law." U.S. Const. amend. V (applying the 

prohibition to the federal government); amend. XIV, § 1

(applying the same to the States). "[C]ommitment for any 

purpose constitutes a significant deprivation of liberty that 

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

As we stated last term, "in a civil commitment case, due process 

requires the [government] to prove by clear and convincing 

evidence that the individual is both mentally ill and 

dangerous." Marathon Cnty. v. D.K., 2020 WI 8, ¶29, 390 

Wis. 2d 50, 937 N.W.2d 901. 

¶28 The United States Supreme Court established that, 

before the government can commit someone and deprive that person 

of liberty, "the [government] must prove by clear and convincing 

evidence that [the individual] is demonstrably dangerous to the 

community." Foucha v. Louisiana, 504 U.S. 71, 81 (1992). 

K.E.K. asserts that this means the County must use recent acts 

or omissions to prove she is "demonstrably dangerous." However, 

no such requirement appears in Foucha, nor has the Court ever 

required a specific type of evidence to prove current 

dangerousness. Indeed, "[i]n this complicated and difficult 

area, the Supreme Court 'has wisely left the job of creating 

statutory definitions to the legislators who draft state laws.'" 
No. 2018AP1887 

17

Dennis H., 255 Wis. 2d 359, ¶38 (quoting State v. Post, 197 

Wis. 2d 279, 304, 541 N.W.2d 115 (1995)). As such, we decline 

to create, from whole-cloth, a constitutional requirement that a 

county use recent acts or omissions at a commitment extension 

proceeding. Instead, we rely on the options the legislature 

provided to the counties to prove current dangerousness——the 

five standards from Wis. Stat. § 51.20(1)(a)2.a.-e. and the 

alternative evidentiary path from § 51.20(1)(am). It is the 

definitions and requirements the legislature chose that must 

comport with due process, not the novel requirement that K.E.K. 

proposes. 

3. Wisconsin Stat. § 51.20(1)(am) satisfies due process.

¶29 To satisfy due process, the government must prove that 

the individual is both mentally ill and currently dangerous by 

clear and convincing evidence. See Foucha, 504 U.S. at 81. We 

have held that, at a recommitment proceeding, a county must meet 

this due process standard. J.W.K., 386 Wis. 2d 672, ¶24. Thus, 

to succeed on a due process claim here, K.E.K. must prove that 

Wis. Stat. § 51.20(1)(am) does not require a showing of current 

dangerousness. K.E.K. cannot do so because, as this court 

unanimously recognized, § 51.20(1)(am) creates an alternative 
No. 2018AP1887 

18

evidentiary path to prove current dangerousness. See J.W.K., 

386 Wis. 2d 672, ¶¶24, 34.13 

¶30 Therefore, because Wis. Stat. § 51.20(1)(am) requires 

proof of current dangerousness, it satisfies the Due Process 

Clause's requirements. Accordingly, K.E.K. cannot show that 

§ 51.20(1)(am) violates Due Process in all applications, so her 

facial challenge fails. 

B. Equal Protection

¶31 K.E.K. also alleges that Wis. Stat. § 51.20(1)(am) 

violates her constitutional right to equal protection of the 

laws by allowing for commitment under different standards than a 

commitment under the fifth standard, § 51.20(1)(a)2.e. However, 

the state14 has a rational basis for allowing these different 

evidentiary standards. Accordingly, K.E.K.'s facial equal 

protection claim fails. 

¶32 K.E.K. claims that those recommitted under Wis. Stat. 

§ 51.20(1)(am) and those committed under the fifth standard are 

similarly situated, but that a county may commit someone under 

 

13 The majority opinion in J.W.K. stated that "[e]ach 

extension hearing requires proof of current

dangerousness . . . . The County must prove the individual 'is

dangerous.' The alternate avenue of showing dangerousness under 

paragraph (am) does not change the elements or quantum of proof 

required." J.W.K., 386 Wis. 2d 672, ¶24 (citations omitted). 

Similarly, the dissent described Wis. Stat. § 51.20(1)(am) as 

"creating an alternative path to prove current 

dangerousness . . . ." Id., ¶35 (Dallet, J., dissenting). 

14 Although it is the counties who file petitions under Wis. 

Stat. § 51.20, the state created the commitment scheme via 

statute. Accordingly, the state must possess a rational basis 

for any differential treatment, not the counties. 
No. 2018AP1887 

19

§ 51.20(1)(am) without proving the elements that we held are 

necessary for a commitment under the fifth standard.15 K.E.K. 

argues that the state does not have a rational basis for 

requiring these elements for an initial commitment under the 

fifth standard and a recommitment under § 51.20(1)(am). Thus, 

she asserts, § 51.20(1)(am) violates her right to equal 

protection of the laws. 

¶33 "To prove an equal protection clause violation, the 

party challenging a statute's constitutionality must show that 

'the state unconstitutionally treats members of similarly 

situated classes differently.'" State v. West, 2011 WI 83, ¶90, 

336 Wis. 2d 578, 800 N.W.2d 929 (quoting Post, 197 Wis. 2d at 

318). However, "[t]he right to equal protection does not 

require that such similarly situated classes be treated 

identically, but rather requires that the distinction made in 

treatment have some relevance to the purpose for which 

 

15 We described these necessary elements for a commitment 

under the fifth standard in Dennis H.:

The fifth standard permits commitment only when a 

mentally ill person needs care or treatment to prevent 

deterioration but is unable to make an informed choice 

to accept it. This must be "demonstrated by both the

individual's treatment history" and by the person's 

"recent acts or omissions." It must also be 

substantially probable that if left untreated, the 

person "will suffer severe mental, emotional or 

physical harm" resulting in the loss of the "ability 

to function independently in the community" or in the 

loss of "cognitive or volitional control."

Dennis H., 255 Wis. 2d 359, ¶39 (citation omitted). 
No. 2018AP1887 

20

classification of the classes is made." Id. Thus, the first 

step in an equal protection claim is to identify similarly 

situated, yet differently treated individuals. See Dennis H., 

255 Wis. 2d 359, ¶31; Post, 197 Wis. 2d at 318-19. The second 

step is to determine if the government has an appropriate basis 

for the different classifications and treatment. See Dennis H., 

255 Wis. 2d 359, ¶31. 

¶34 Those committed under Wis. Stat. § 51.20(1)(am) and 

those committed under the fifth standard are similarly situated. 

A county, under either § 51.20(1)(am) or the fifth standard, 

must prove exactly the same underlying elements with the same 

quantum of proof required for commitment. See J.W.K., 386 

Wis. 2d 672, ¶24 ("The alternate avenue of showing dangerousness 

under paragraph (am) does not change the elements or quantum of 

proof required. It merely acknowledges that an individual may 

still be dangerous despite the absence of recent acts, 

omissions, or behaviors exhibiting dangerousness outlined in 

§ 51.20(1)(a)2.a.-e."). Moreover, when a county uses 

§ 51.20(1)(am), it does so in combination with the five 

standards, including when a county commits someone under the 

fifth standard through the lens of § 51.20(1)(am). See D.J.W., 

391 Wis. 2d 231, ¶50. That is, the two statutes work in concert 

with each other, so those committed under either section face 

nearly identical elements and restraints. Accordingly, a person 

facing a commitment under the fifth standard and a person facing 

an extension of a commitment under § 51.20(1)(am) are similarly 

situated. Cf. Post, 197 Wis. 2d at 318-19 (holding that 
No. 2018AP1887 

21

"persons committed under chapters 51 and 980 are similarly 

situated for purposes of an equal protection comparison"). 

¶35 Because those committed under Wis. Stat. 

§ 51.20(1)(am) and those committed under the fifth standard are 

similarly situated, we must evaluate whether the "statutorily 

distinctive mechanisms for dealing with the two classes was 

proper in light of the difference between the classifications." 

West, 336 Wis. 2d 578, ¶92. "Whether a legislative distinction 

between otherwise similarly situated persons violates equal 

protection depends upon whether there is a reasonable basis to 

support it." Dennis H., 255 Wis. 2d 359, ¶31. "Where the 

classification does not involve a suspect class, equal 

protection is denied only if the legislature has made an 

irrational or arbitrary classification." Id. (quoting State ex 

rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 733, 416 N.W.2d 883 

(1987)). Describing the power of the state to create different 

classifications, we have stated:

"[T]he state retains broad discretion to create 

classifications so long as the classifications have a 

reasonable basis." Under the rational basis test, a 

statutory classification is presumed to be proper. It 

will be sustained if the reviewing court can identify 

any reasonable basis to support it. Any doubt must be 

resolved in favor of the reasonableness of the 

classification and the constitutionality of the 

statute in which it is made. A "legislative enactment 

must be sustained unless it is 'patently arbitrary' 

and bears no rational relationship to a legitimate 

government interest."

Dennis H., 255 Wis. 2d 359, ¶32 (citations omitted). 

Accordingly, we apply a rational basis level of scrutiny to Wis. 
No. 2018AP1887 

22

Stat. § 51.20(1)(am) and will sustain it if we can identify "any

reasonable basis to support" the different classifications.

¶36 We determine that the state has a reasonable basis for 

treating those committed under the fifth standard and those 

committed under Wis. Stat. § 51.20(1)(am) differently. The 

purpose of § 51.20(1)(am) "is to allow extension of a commitment 

when the patient's condition has not improved enough to warrant 

discharge. Because of the therapy received, evidence of recent 

action exhibiting 'dangerousness' is often nonexistent. 

Therefore, the emphasis is on the attendant consequence to the 

patient should treatment be discontinued." M.J. v. Milwaukee 

Cnty. Combined Cmty. Servs. Bd., 122 Wis. 2d 525, 530-31, 362 

N.W.2d 190 (Ct. App. 1984); see also J.W.K., 386 Wis. 2d 672, 

¶23. Thus, unlike the fifth standard, § 51.20(1)(am) applies 

only to patients that are already receiving treatment. By 

enacting this alternative means of showing dangerousness, the 

legislature conceivably could have wanted——and likely did want——

to give counties a more realistic basis by which to prove 

current dangerousness when it is likely the committed individual 

would discontinue treatment if no longer committed. See J.W.K., 

386 Wis. 2d 672, ¶24 ("[Wisconsin Stat. § 51.20(1)(am)] merely 

acknowledges that an individual may still be dangerous despite 

the absence of recent acts, omissions, or behaviors exhibiting 

dangerousness outlined in § 51.20(1)(a)2.a.-e."). As the court 

of appeals previously explained:
No. 2018AP1887 

23

The clear intent of the legislature in amending [Wis. 

Stat. § 51.20(1)(am)] was to avoid the "revolving 

door" phenomena whereby there must be proof of a 

recent overt act to extend the commitment but because 

the patient was still under treatment, no overt acts 

occurred and the patient was released from treatment 

only to commit a dangerous act and be recommitted. 

The result was a vicious circle of treatment, release, 

overt act, recommitment. The legislature recognized 

the danger to the patients and others of not only 

allowing for, but requiring, overt acts as a 

prerequisite for further treatment.

State v. W.R.B., 140 Wis. 2d 347, 351, 411 N.W.2d 142 (Ct. App. 

1987). Accordingly, we hold that addressing the "revolving 

door" phenomena is a reasonable basis for the different 

evidentiary avenues of § 51.20(1)(am) and the fifth standard. 

¶37 Accordingly, K.E.K. is unable to prove that the state 

impermissibly treats those committed under Wis. Stat. 

§ 51.20(1)(am) and those committed under the fifth standard 

differently. Therefore, the statute does not violate K.E.K.'s 

right to equal protection of the laws. 

C. As Applied

¶38 K.E.K. also challenges Wis. Stat. § 51.20(1)(am)'s 

constitutionality as applied to her. She claims that, based on 

the specifics of her case, § 51.20(1)(am) violates due process, 

the Privileges or Immunities Clause, and the Equal Protection 

Clause. She argues that, because she was not dangerous to 

herself or others, "§ 51.20(1)(am) plainly, clearly, and beyond 

a reasonable doubt violates the 14th Amendment as applied to the 

facts of [her] case." This argument, however, advances an 

evidentiary sufficiency challenge under the guise of as-applied 

constitutional challenges. Accordingly, K.E.K.'s as-applied 
No. 2018AP1887 

24

constitutional challenges to § 51.20(1)(am) fail because they 

are sufficiency of the evidence challenges, not constitutional 

challenges. 

¶39 A claim that a statute is unconstitutional as applied 

is "a claim that a statute is unconstitutional on the facts of a 

particular case or to a particular party." Voters with Facts v. 

City of Eau Claire, 2018 WI 63, ¶60, 382 Wis. 2d 1, 913 

N.W.2d 131 (quoting Olson v. Town of Cottage Grove, 2008 WI 51, 

¶44 n.9, 309 Wis. 2d 365, 749 N.W.2d 211). Although these 

claims operate on the basis of the "facts of a particular case," 

it does not transform the as-applied constitutional challenge 

into an alternative means to attack the sufficiency of the 

evidence. 

¶40 K.E.K. asserts that "[i]t is undisputed that [she] 

posed no danger to herself or others during her commitment." 

This is not a challenge to the constitutionality of the statute 

as applied to K.E.K.'s facts; it challenges the application of 

the statute to the facts of this case. The statute has no 

application, constitutional or otherwise, against those who are 

not currently dangerous. See, e.g., D.J.W., 391 Wis. 2d 231, 

¶59 (concluding the evidence was insufficient at a recommitment 

hearing to prove dangerousness under Wis. Stat. § 51.20(1)(am)). 

If K.E.K. is not currently dangerous, the County has no power to 

commit her under the statute. If the evidence is insufficient, 

it does not mean the statute is unconstitutional——it merely 

means that the County violated the statute. 
No. 2018AP1887 

25

¶41 Accordingly, K.E.K.'s as-applied constitutional 

challenges fail. Her dispute is with the sufficiency of the 

evidence, not with the constitutionality of Wis. Stat. 

§ 51.20(1)(am). 

IV. CONCLUSION

¶42 We conclude that K.E.K. is unable to prove that Wis. 

Stat. § 51.20(1)(am) cannot be enforced under any circumstances 

because due process and the statute both require a showing of 

mental illness and current dangerousness. As such, K.E.K.'s 

facial due process challenge fails.

¶43 Moreover, Wis. Stat. § 51.20(1)(am) creates an 

alternative path to give counties a more realistic basis by 

which to prove current dangerousness when it is likely the 

committed individual would discontinue treatment if no longer 

committed. Thus, the state has a rational basis for treating 

those recommitted under § 51.20(1)(am) and those committed under 

§ 51.20(1)(a)2.e. differently. 

¶44 Finally, K.E.K.'s as-applied constitutional challenges 

are disguised sufficiency of the evidence challenges. Her 

argument is that she does not meet the statutory standard for 

dangerousness, not that Wis. Stat. § 51.20(1)(am) is 

unconstitutional when applied to K.E.K.'s specific facts. 

¶45 Therefore, we conclude that Wis. Stat. § 51.20(1)(am) 

is facially constitutional and that K.E.K.'s as-applied 

constitutional challenges fail. Accordingly, we affirm the 

decision of the court of appeals. 
No. 2018AP1887 

26

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

affirmed.
No. 2018AP1887.rfd

1

¶46 REBECCA FRANK DALLET, J. (dissenting). The 

Fourteenth Amendment to the United States Constitution prohibits 

the government from involuntarily confining a person with a 

mental illness unless it can prove that person is currently 

dangerous. K.E.K. argues that Wis. Stat. § 51.20(1)(am) 

(2017-18)1 is unconstitutional because it allows the government 

to extend her commitment based not on her recent acts or 

omissions but on a treatment record detailing past behaviors and 

on predictions that, if no longer committed, she might behave 

dangerously in the future. In the face of that constitutional 

challenge, the majority fails to engage in any real analysis of 

whether this type of "alternative" evidence passes 

constitutional muster. It does not. Section 51.20(1)(am) is 

facially unconstitutional because it eliminates the 

constitutionally required showing of current dangerousness in 

favor of "alternative" evidence that shows only that a person 

was or might become dangerous. Therefore, I respectfully 

dissent.

 

1 K.E.K.'s challenge implicates only the first of the three 

sentences in Wis. Stat. § 51.20(1)(am). If successful, her 

challenge would void only that sentence because the other two 

are distinct, separable, and not dependent on the first. See

State v. Hezzie R., 219 Wis. 2d 848, 863, 580 N.W.2d 660 (1998) 

("[P]art of a statute may be unconstitutional, and the remainder 

may still have effect, provided the two parts are distinct and 

separable and are not dependent upon each other." (quoting 

Muench v. PSC, 261 Wis. 492, 515, 55 N.W.2d 40 (1952))). 

Therefore, when I refer to § 51.20(1)(am), I refer only to its 

first sentence.
No. 2018AP1887.rfd

2

I

¶47 The civil commitment of persons diagnosed with a 

mental illness constitutes a government exercise of either its 

parens patriae power to care for citizens unable to care for 

themselves or its police power to prevent harm to the community. 

See Addington v. Texas, 441 U.S. 418, 426 (1979). While both 

are legitimate government interests, neither is boundless. 

Involuntary mental health commitments are, after all, "a 

significant deprivation of liberty." Id.; Vitek v. Jones, 445 

U.S. 480, 491–92 (1980). They deprive persons of their most 

basic and fundamental freedom "to go unimpeded about [their] 

affairs" and to make decisions regarding their health. Lessard 

v. Schmidt, 349 F. Supp. 1078, 1084 (E.D. Wis. 1972), vacated 

and remanded on other grounds, 421 U.S. 957 (1975), 

reinstated, 413 F. Supp. 1318 (E.D. Wis. 1976).

¶48 The Fourteenth Amendment to the United States 

Constitution guarantees that no citizen may be involuntarily 

committed without due process. See Vitek, 445 U.S. at 491–92 

("[C]ommitment . . . produces 'a massive curtailment of 

liberty,' and in consequence 'requires due process protection.'" 

(quoted sources omitted)). Thus, an individual facing 

commitment must have a meaningful opportunity to contest the 

evidence against her. State v. Hanson, 98 Wis. 2d 80, 86, 295 

N.W.2d 209 (Ct. App. 1980), aff'd, 100 Wis. 2d 549, 302 

N.W.2d 452 (1981). And because an involuntary mental health 

commitment is premised on either an individual's inability to 

care for herself or her danger to the public, due process 
No. 2018AP1887.rfd

3

dictates that the government must demonstrate, by clear and 

convincing evidence, that the person is both mentally ill and 

dangerous to herself or others.2 Marathon Cnty. v. D.K., 2020 

WI 8, ¶¶27-28, 390 Wis. 2d 50, 937 N.W.2d 901 (citing O'Connor 

v. Donaldson, 422 U.S. 563, 576 (1975) and Addington, 441 U.S. 

at 432-33). As we recently held, the government must prove that 

an individual is "current[ly] dangerousness"; "it is not enough 

that the individual was" dangerous. Portage Cnty. v. 

J.W.K., 2019 WI 54, ¶24, 386 Wis. 2d 672, 927 N.W.2d 509.

 

2 There is no dispute that the Fourteenth Amendment 

substantively protects the basic liberty of non-dangerous 

individuals against the government's attempts to deprive them of 

that liberty. See O'Connor v. Donaldson, 422 U.S. 563, 575-76 

(1975); Vitek v. Jones, 445 U.S. 480, 491–92 (1980). There is 

some debate, however, about whether it is the Fourteenth 

Amendment's Due Process Clause or its Privileges or Immunities 

Clause that prevents states from infringing on an individual's 

inherent right to liberty. See, e.g., Planned Parenthood of Se. 

Penn. v. Casey, 505 U.S. 833, 847-48 (1992) (explaining that the 

Due Process Clause protects "a realm of personal liberty which 

the government may not enter"); Winnebago Cnty. v. C.S., 2020 

WI 33, ¶¶47-70, 391 Wis. 2d 35, 940 N.W.2d 875 (Rebecca Grassl 

Bradley, J., dissenting) (concluding that "liberty interests may 

be vindicated under the Privileges or Immunities Clause"); Josh 

Blackman & Ilya Shapiro, Keeping Pandora's Box Sealed: 

Privileges or Immunities, the Constitution in 2020, and Properly 

Extending the Right to Keep and Bear Arms to the States, 8 Geo. 

J.L. & Pub. Pol'y 1, 64 (2010) ("The Privileges or Immunities 

Clause is about individual liberty."). This academic debate has 

no bearing on K.E.K.'s challenge. After all, this court has 

already held that, based on the United States Supreme Court's 

"due process" jurisprudence, the government must prove current 

dangerousness. See Marathon Cnty. v. D.K., 2020 WI 8, ¶¶26-27, 

390 Wis. 2d 50, 937 N.W.2d 901 (citing O'Connor, 422 U.S. 

at 576). Support for this basic liberty may also be found in 

the Wisconsin Constitution's protection of the people's 

"inherent right[]" to "liberty." Wis. Const. art. I, § 1.
No. 2018AP1887.rfd

4

¶49 These constitutional due process protections, however, 

have not always been the law in Wisconsin, and vestiges of our 

troubling history in this area remain. In the early 1970s, 

Wisconsin became the epicenter of civil commitment reform 

following a class-action lawsuit that contested Wisconsin's 

mental health commitment procedures. See Lessard, 349 

F. Supp. 1078. There, a three-judge federal panel enjoined 

Wisconsin's commitment laws because Alberta Lessard, like many 

committed before her, was denied a series of key procedural 

protections:

 adequate notice of the proceedings against her;

 a prompt probable-cause hearing, despite being 

detained;

 the ability to invoke her right against selfincrimination or object to hearsay evidence;

 a heightened burden of proof commensurate with the 

deprivation of her liberty; and

 her right to counsel.

Id. at 1090-1103. Lessard's victory led to certain procedural 

changes, but our pre-Lessard ghosts continue to haunt us. 

Indeed, as of 2015, Wisconsin involuntarily commits its citizens 

diagnosed with mental illnesses at a higher rate than any other 

state.3 Although we presume that the State's current mental 

 

3 Wisconsin involuntarily commits roughly 44 of every 1,000 

persons diagnosed with a serious mental health disorder, far 

exceeding the average rate of other states (9 per 1,000). 

Substance Abuse & Mental Health Servs. Admin., Civil Commitment 

and the Mental Health Care Continuum: Historical Trends and 

Principles for Law and Practice 12 (2019).
No. 2018AP1887.rfd

5

health commitment scheme is constitutional, we cannot ignore its 

history to the contrary. See Winnebago Cnty. v. C.S., 2020 

WI 33, ¶14, 391 Wis. 2d 35, 940 N.W.2d 875.

¶50 Today, mental health commitments begin with a sixmonth initial commitment once the criteria set forth in Wis. 

Stat. § 51.20(1)(a) are met. See § 51.20(13)(g)1. (limiting the 

initial commitment period to not more than six months). As 

discussed above, the government must show that the person is 

both mentally ill and currently dangerous. § 51.20(1)(a); 

D.K., 390 Wis. 2d 50, ¶27. The government may prove the latter 

requirement if it can show, by clear and convincing evidence, 

that there is a substantial probability that, based on recent 

acts or omissions, the person will cause physical harm to 

herself or others in at least one of four ways. 

§ 51.20(1)(a)2.a.-d. A fifth standard allows the government to 

prove current dangerousness by showing a substantial probability 

that, without treatment, an individual who has demonstrated an 

"inability to make informed treatment decisions" will "further 

decompensat[e]" to the extent that she cannot independently care 

for herself, "as demonstrated by both the individual's treatment 

history and his or her recent acts or omissions." 

§ 51.20(1)(a)2.e.; State v. Dennis H., 2002 WI 104, ¶¶20-24, 255 

Wis. 2d 359, 647 N.W.2d 851.

¶51 After the initial six-month commitment period, the 

government may extend the commitment for up to one year at a 

time. See § 51.20(13)(g)1. & 3. At each extension hearing, the 

government must again demonstrate both mental illness and 
No. 2018AP1887.rfd

6

current dangerousness. § 51.20(13)(g)3.; J.W.K., 386 

Wis. 2d 672, ¶21. The evidence of current dangerousness must be 

"independent[]" of that introduced at the initial commitment 

proceeding. J.W.K., 386 Wis. 2d 672, ¶¶21, 24. Just as in the 

initial commitment proceedings, § 51.20(1)(a)2. governs the type 

of evidence the government can use to show current 

dangerousness.

¶52 But § 51.20(1)(am) provides an "alternative" 

evidentiary path. Under that provision, the government may 

"satisf[y]" the respective recent-act-or-omission requirements 

in each of the five dangerousness standards "by a showing that 

there is a substantial likelihood, based on the subject 

individual's treatment record, that the individual would be a 

proper subject for commitment if treatment were withdrawn." 

(Emphases added.) Thus, by its plain language, § 51.20(1)(am) 

permits the government to extend an individual's commitment 

based not upon evidence that an individual is dangerous but upon 

a prediction that she might become dangerous in one of the ways

defined in § 51.20(1)(a)2.

¶53 That is the route Waupaca County took here. The 

circuit court extended K.E.K's commitment under the fifth 

standard of dangerousness, § 51.20(1)(a)2.e., by way of the 

§ 51.20(1)(am) "alternative," basing its order on the 

predictions of two mental health professionals. Those witnesses 

forecasted that K.E.K., based on her treatment record, would 

become a proper subject for commitment under the fifth standard 

if treatment were withdrawn.
No. 2018AP1887.rfd

7

¶54 K.E.K. argues that extending her commitment based on 

this "alternative" to evidence of recent acts or omissions 

contravenes her Fourteenth Amendment rights in that it allows 

the government to extend her commitment without providing any 

evidence that she is currently dangerous. In rejecting her 

challenge, the majority opinion sidesteps the constitutional 

question, instead misinterpreting and improperly relying on 

J.W.K. A careful constitutional analysis of § 51.20(1)(am), 

however, reveals that it is facially unconstitutional.

II

¶55 The majority opinion errs in its premise that we 

"authoritatively determined" in J.W.K. that Wis. Stat. 

§ 51.20(1)(am) is constitutional. See majority op., ¶26. 

There, however, we interpreted the language of § 51.20(1)(am) 

only to determine whether J.W.K.'s appeal challenging the 

sufficiency of the evidence was moot. We made no pronouncement 

either way about its constitutionality——an unsurprising result 

given that J.W.K. did not raise a constitutional challenge.

¶56 To the extent that J.W.K. addresses current 

dangerousness, its reasoning undercuts the majority's conclusion 

rather than supports it. The majority claims that 

§ 51.20(1)(am) is constitutional because, per J.W.K., it allows 

the government to use "alternative" evidence to show that an 

individual "may still be dangerous despite the absence of recent 

acts, omissions, or behaviors exhibiting dangerousness." 

Id., ¶36 (quoting J.W.K., 386 Wis. 2d 672, ¶24). That is, the 

majority opinion accepts as "current" the dangerous behavior 
No. 2018AP1887.rfd

8

that led to the individual's initial commitment, based on 

conjecture that this same behavior might manifest itself again 

if treatment is withdrawn. But J.W.K. rejected that very 

argument, explaining that the government may not extend an 

individual's commitment by resting solely on the evidence used 

to initially commit her. J.W.K., 386 Wis. 2d 672, ¶24 ("It is 

not enough that the individual was at one point a proper subject 

for commitment."). Simply put, J.W.K. provides no basis for a 

constitutional analysis of § 51.20(1)(am); it instead bolsters 

K.E.K.'s position that whatever evidence of dangerousness 

supported her initial commitment cannot satisfy the 

constitutional requirement that the government demonstrate she 

is dangerous right now. The majority opinion's mistaken 

reliance on and misinterpretation of J.W.K. stunts any actual 

constitutional analysis of § 51.20(1)(am).

¶57 A proper examination of the plain language of 

§ 51.20(1)(am) reveals that it is facially unconstitutional 

because it allows the government to involuntarily commit someone 

who is not currently dangerous. Section 51.20(1)(am) 

substitutes the recent-act-or-omission requirements of 

§ 51.20(1)(a)2. with a showing that there is a "substantial 

likelihood," based on the subject individual's treatment record, 

that the individual "would be a proper subject for commitment if

treatment were withdrawn." (Emphases added.) The use of "would 

be" in tandem with an "if" clause forms a "future unreal 

conditional." As the label implies, such sentences deal with 

hypothetical futures based on some condition not currently 
No. 2018AP1887.rfd

9

present. This phrasing redefines "is dangerous" to mean "might

be dangerous if some future conditions are met."

¶58 The problem with relying on the future conditional 

language in § 51.20(1)(am) is compounded by the fact that the 

five standards of dangerousness are already predictions about 

future behavior. Each standard is based on a "substantial 

probability" that harm will occur. What saves the five 

standards from being unconstitutional in the initial commitment 

context is that each requires evidence of a recent act or 

omission that evinces dangerousness. See § 51.20(1)(a)2. 

Section 51.20(a)(am) dispenses entirely with that recent-act-oromission requirement, allowing it to be "satisfied" with future 

speculation, thus layering uncertainty on top of uncertainty 

while never proving that an individual is in fact dangerous 

right now.

¶59 Section 51.20(1)(am)'s reliance on an individual's 

treatment record likewise does not establish proof of current 

dangerousness. An individual's treatment record will always 

include some past event of dangerous behavior; otherwise the 

individual could not have been committed in the first place. 

But in the commitment extension context, if the government's 

only evidence of dangerousness is that which led to the initial 

commitment, then it has no evidence of current dangerousness. 

See J.W.K., 386 Wis. 2d 672, ¶24. And without evidence of 

current dangerousness, an individual cannot be involuntarily 

committed. J.W.K., 386 Wis. 2d 672, ¶21; Foucha v. 

Louisiana, 504 U.S. 71, 77-78 (1992).
No. 2018AP1887.rfd

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¶60 K.E.K.'s commitment extension illustrates just how 

divorced predictions about future dangerousness are from current 

dangerousness. Both the County's psychiatrist, Dr. Marshall 

Bales, and K.E.K.'s behavioral health case manager, Heather Van 

Kooy, confirmed that K.E.K was stable in an outpatient facility. 

They explained that K.E.K. was responding to treatment, that she 

had been taking her medication, and that she had committed no 

recent violent or threatening acts. Dr. Bales pointedly stated 

that K.E.K. had "not been dangerous over the last number of 

months." Although he noted that K.E.K. lacked insight into her 

mental illness and that she still talked and giggled to herself, 

he acknowledged that those symptoms are not necessarily 

dangerous behaviors. Ms. Van Kooy agreed that K.E.K.'s symptoms 

had not manifested in any dangerous behaviors or threats of harm 

to herself or others. Far from showing that K.E.K. was 

currently dangerous, Dr. Bales's and Ms. Van Kooy's testimony 

exemplify the disconnect between predictions about future 

dangerousness permitted under § 51.20(1)(am) and actual evidence 

of current dangerousness required by the Constitution and our 

precedent.

B

¶61 Failing to grapple with that disconnect, the majority 

opinion offers two last-ditch, but unavailing, arguments for 

upholding Wis. Stat. § 51.20(1)(am). First, it upholds 

§ 51.20(1)(am) on the grounds that it "give[s] counties a more 

realistic basis by which to prove dangerousness." Majority 

op., ¶36. More realistic than what is unclear. 
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Notwithstanding, there is nothing unrealistic about a standard 

of proof that requires evidence of current dangerous behavior to 

show that someone is currently dangerous. If the government has 

no such evidence, perhaps the committed individual is, in fact, 

not currently dangerous.

¶62 To that, the majority opinion responds with its second 

defense of § 51.20(1)(am): the "revolving door" phenomena. 

This justification posits that without the "alternative" 

evidence permitted under § 51.20(1)(am), committed individuals 

will enter a "vicious circle of treatment, release, overt act, 

recommitment." Majority op., ¶36 (quoting State v. W.R.B., 140 

Wis. 2d 347, 351, 411 N.W.2d 142 (Ct. App. 1987)). Setting 

aside the fact that this judicially crafted rationale lacks any 

basis in the text or legislative history of § 51.20(1)(am), it 

does nothing to address the fact that § 51.20(1)(am) 

impermissibly redefines "currently dangerous." Instead, it 

assumes the truth of the constitutional violation——that the 

individual is not presently dangerous——while excusing that 

violation because the previously committed individual may meet 

the commitment requirements again.

¶63 I understand, to a point, the policy concerns 

underlying this revolving door reality for some. I recognize 

that an individual released from a mental health commitment may 

at some point cease treatment and again become a proper subject 

for commitment. I also recognize that simply extending an 

individual's commitment may be more expedient than having to 
No. 2018AP1887.rfd

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start the commitment process anew should an individual's 

condition significantly deteriorate.

¶64 The Constitution, however, yields to neither good 

intentions nor expediency. Its protections are all the more 

important when faced with well-intentioned and efficient 

practices that ultimately amount to a violation of an 

individual's fundamental liberty. See Bonnett v. Vallier, 136 

Wis. 193, 200, 116 N.W. 885 (1908) ("Good intentions in the 

passage of a law or a praiseworthy end sought to be attained 

thereby cannot save the enactment if it transcends in the 

judgment of the court the limitations which the Constitution has 

placed upon legislative power."); Kiley v. Chi., Milwaukee & St. 

Paul Ry. Co., 138 Wis. 215, 256, 119 N.W. 309 (1909) ("The 

Constitution was made to guard the people against the dangers of 

good intentions as well as bad intentions and mistakes. The 

former may excuse a void enactment, but never justify it."). 

Therefore, as concerning as the revolving door phenomenon may 

be, it cannot justify depriving individuals of their liberty 

without due process.

III

¶65 The government may constitutionally commit someone 

against her will only if she is mentally ill and currently 

dangerous. By its plain terms, Wis. Stat. § 51.20(1)(am) swaps 

the latter requirement for evidence of an individual's past 

conduct and uncertain predictions about her potential future 

dangerousness. Under no set of facts, however, can past records 

or speculative predictions, on their own, demonstrate current 
No. 2018AP1887.rfd

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dangerousness. Accordingly, I conclude that § 51.20(1)(am) 

facially violates the Fourteenth Amendment to the United States 

Constitution.

¶66 I therefore respectfully dissent.

¶67 I am authorized to state that Justice JILL J. KAROFSKY 

joins this dissent.
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