COURT OF APPEALS

DECISION

DATED AND FILED

May 6, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP2105 Cir. Ct. No. 2020ME2

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN RE THE COMMITMENT OF J.J.K.:

ROCK COUNTY,

 PETITIONER-RESPONDENT,

 V.

J. J. K.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Rock County: 

JEFFREY S. KUGLITSCH, Judge. Affirmed. 

¶1 BLANCHARD, J.1 J.J.K. appeals two circuit court orders: one 

granting Rock County’s petition to extend a prior involuntary commitment for 12 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-20). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP2105

2

months and the other granting the County’s request for an order of involuntary 

medication and treatment during the period of extended commitment or until 

further order of the court. See WIS. STAT. §§ 51.20(13)(g)1., 51.61(1)(g)4. 

Regarding the recommitment order, J.J.K. primarily argues that the evidence was 

insufficient to show that, as of the time of the court’s challenged ruling, he was 

“currently dangerous” to himself, as the circuit court determined. Regarding the 

order for involuntary medication and treatment, J.J.K. argues that the County 

failed to prove that he was substantially incapable of applying an understanding of 

the advantages, disadvantages, and alternatives to medication under the applicable 

statutory standards, because he was not fully informed about his options. 

¶2 I conclude that there was clear and convincing evidence to support 

the circuit court’s determination that there was “a substantial likelihood” that 

J.J.K. “would be a proper subject for commitment if treatment were withdrawn,” 

see WIS. STAT. § 51.20(1)(am), based on sufficient proof of a substantial 

likelihood of dangerousness based on an inability to care for himself under the 

“fourth standard,” see § 51.20(1)(a)2.d. I separately conclude that there was also 

clear and convincing evidence sufficient to support the order for involuntary 

medication and treatment, including sufficient proof of his knowledge about 

options. Accordingly, I affirm. 

BACKGROUND

Petition For Recommitment

¶3 In January 2020, J.J.K. was initially committed and subjected to 

involuntary medication. In May 2020, Rock County petitioned for recommitment, 

alleging that he is mentally ill, a proper subject for treatment, and a danger to 

himself or others. The petition explained that J.J.K., then 34, was residing in an 
No. 2020AP2105

3

apartment and was being “followed on an outpatient basis by [the] Janesville 

Counseling Center.” It reported that Dr. Jeffrey Marcus had evaluated J.J.K. on 

May 19, 2020, and that Dr. Marcus “recommends extension of the current 

commitment.” The petition represented that J.J.K. had “made significant 

improvements over the period of commitment,” but that “[t]reatment staff believe 

that if not committed to treatment, [J.J.K.] would not comply and would 

decompensate to a dangerous level of functioning once again.” 

¶4 The circuit court held a hearing on the petition on July 22, 2020, at 

which two witnesses testified, both called by the County: Dr. Marcus, a 

psychiatrist, and Dr. James Black, a psychologist. J.J.K. did not personally testify. 

At the hearing, his counsel did not challenge either the qualifications of either Dr. 

Marcus or Dr. Black, nor did counsel challenge the reliability of their expert 

testimony. Each expert testified that he had recently conducted a mental status 

examination with J.J.K., reviewed treatment records, and consulted with treatment 

staff. Each also testified that he had filed a report with the court based on these 

information sources. The court received both reports into evidence. 

Hearing Evidence

¶5 Dr. Marcus testified to the following regarding J.J.K.’s mental 

illness. J.J.K. has a dual diagnosis of a mental illness and developmental 

disability.2 J.J.K.’s mental illness diagnosis is “an unspecified psychotic disorder, 

likely schizophrenia,” which affects his “thought and perception” and “impairs his 

 

2

 J.J.K.’s developmental disability diagnosis is an “autism spectrum disorder” and is not 

the focus of arguments by either side in this appeal. Neither side disputes testimony by Dr. 

Marcus that, as a general rule, autism is not a treatable mental illness. 
No. 2020AP2105

4

judgment, behavior, capacity to meet the demands of daily life,” and his “ability to 

recognize reality.” He has “psychotic symptoms”—which include “acute 

paranoia,” “agitation,” “lability,”3and “disorganization”—with “treatable 

components.” The “primary features” of this mental illness include “dysfunction 

with lack of judgment” and an “inability to manage himself safely.” 

¶6 In his report, Dr. Marcus stated that treatment records reflect that 

J.J.K. was initially committed after he “was unwilling to accept assistance with 

housing or other services due to his paranoid beliefs,” and “afraid to accept food 

because of fears of being poisoned.” 

¶7 In a similar vein, Dr. Black testified to the following regarding 

J.J.K.’s mental illness. J.J.K.’s “psychiatric profile” is “complicated,” but “I 

believe he is diagnosed with schizophrenia with a predominance of negative 

symptoms.” “Negative symptoms” for a patient with schizophrenia include being 

“isolative,” “withdrawn,” having “odd social behaviors, difficulty interacting with 

others.” The schizophrenia affects J.J.K.’s “thought, mood, and perception,” and 

“impairs his judgment, behavior, capacity to recognize reality, [and] ability to 

meet the demands of daily life.” 

¶8 Dr. Marcus testified that when he met with J.J.K. in May 2020, Dr. 

Marcus “did not notice acute paranoia. [J.J.K.] was organized when he talked to 

me. There was no evidence of lability.” Since the initial commitment, J.J.K. “has 

 

3

 “Labile” means “readily or continually undergoing ... change or breakdown.” Labile, 

MERRIAM-WEBSTER.COM DICTIONARY, https://www.merriam-webster.com/dictionary/labile (last 

visited May 3, 2021).
No. 2020AP2105

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gotten a residence in Janesville, and I believe that [things have] been going fairly 

well for him.” 

¶9 Consistent with this testimony, Dr. Black testified to the following 

on related topics. J.J.K. “is not presenting with any obvious symptoms,” having 

“been on medications for a while now,” and is “showing notable improvement.” 

J.J.K.’s improvement was reflected in: his agreement to stay in an apartment 

instead of living under a bridge (as Dr. Black testified he had done, when not 

treated, for a year and half); his “displaying some better evidence of ability to 

interact with others”; his having “some insight into his complicated situation”; and 

there being no “reports of periods of agitation or lability or paranoid delusions.” 

¶10 Dr. Marcus testified that, at the time of his interview with J.J.K., he 

was being treated “on a long-acting psychotic medication called Invega Sustenna 

and that was working quite well in stabilizing his symptoms.” Dr. Black testified 

that psychotropic medication has been J.J.K.’s “predominant treatment,” although 

there has also been some “case management” and “community-based contacts.” 

¶11 However, J.J.K. told Dr. Marcus that he would stop taking this 

medication “if he were off of commitment.” Dr. Black also testified that J.J.K. 

made clear to him that, absent a court order requiring treatment, J.J.K. would not 

continue with the treatment. 

¶12 Dr. Marcus testified that the medication had a “fairly significant[]” 

therapeutic value for J.J.K., and that if J.J.K. stopped taking it then he would 

become a proper subject for commitment. This was because Dr. Marcus expected 

“that the paranoia would increase, the thought disorganization would increase, and 

that his overall level of functioning would decline.” Dr. Black also testified that if 
No. 2020AP2105

6

J.J.K. went off treatment with psychotropic medication he would become a proper 

subject for treatment. 

¶13 Dr. Marcus testified that he explained to J.J.K. the advantages of 

taking the medication (to treat his paranoia and to reduce agitation and lability) 

and disadvantages (“sedation, abnormal muscle movements, weight gain, 

metabolic disturbance, pain at the injection site,” and restlessness). Dr. Marcus 

also “[v]ery briefly mentioned” to J.J.K. “that other psychotropic medications, 

either oral or injectable, can sometimes be used and that other interventions like 

therapy and case management services can be provided.” 

¶14 Dr. Marcus testified that he did not believe that J.J.K. was able to 

apply an understanding of the advantages and disadvantages of the medication to 

his situation, because J.J.K. “did not believe that he had a treatable mental illness 

which would require this type of medication.” Consistent with this, in his report

Dr. Marcus stated that J.J.K. “has consistently denied having a psychotic illness,”

and that his “insight into the presence and nature of his mental illness appeared 

grossly impaired” because he “essentially denied have a psychotic illness.” Dr. 

Marcus also testified that the current level of outpatient treatment “would seem 

appropriate” as the least restrictive treatment option to meet his needs. 

¶15 In his report, Dr. Marcus stated the following in addressing 

dangerousness that could result from discontinuing treatment, resulting in J.K.K. 

no longer taking the medication:

There is a substantial likelihood of psychotic 

decompensation if current treatment were [to be] 

withdrawn. This would result in an increased risk of 

dangerousness, primarily to self. Of specific concern 

would be grossly impaired judgment and a decline in 

[J.J.K.’s] ability to satisfy his basic care needs. It appears 
No. 2020AP2105

7

that his risk of dangerousness has lessened with his current 

psychotropic treatment.

At the hearing, the circuit court asked Dr. Marcus to elaborate on this passage of 

his report. Dr. Marcus responded:

One of the most concerning aspects of what was going on 

at the time of his [initial] commitment was his residing 

outdoors in very cold weather and so lack of judgment and 

an inability to satisfy issues of shelter, issues of nutrition. 

There was concern that he was paranoid about food and

was not accepting of that. There were basic care needs 

concerns which were raised in the record. 

Drs. Marcus and Black each testified that neither was aware of a recurrence, since

J.J.K.’s initial commitment in January 2020, of any of the dangerous behaviors 

that resulted in the initial commitment, although they attributed that to his being 

medicated. 

Arguments Of The Parties To The Circuit Court

¶16 The County made an argument based in part on WIS. STAT.

§ 51.20(1)(a)2.d. (the County referred to it not by statute number but as “the fourth 

standard”), which addresses concern about the ability of the committed person 

care for him or herself (more specifically, “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.”). The County 

contended that, under the fourth standard, recommitment of J.J.K. is necessary “to 

stop the revolving door of commitment, improvement, withdrawal of treatment, 

and then coming back under a commitment.” This “revolving door” concept was a 

transparent reference to § 51.20(1)(am), which provides an “avenue for proving 

dangerousness” “reflecting a change in circumstances occasioned by an 
No. 2020AP2105

8

individual’s [prior] commitment and treatment” and “acknowledg[ing] 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.” See Portage 

Cnty. v. J.W.K., 2019 WI 54, ¶¶19, 24, 386 Wis. 2d 672, 927 N.W.2d 509.

4

 

¶17 Counsel for J.J.K. argued that the County had failed to show that, 

even if J.J.K. were to stop receiving psychotropic medication and even if this 

diminished his ability to care for himself to some degree, “a substantial probability 

exists that death, serious physical injury, serious physical debilitation, or serious 

physical disease will imminently ensue.” Counsel noted that our supreme court 

has explained that the “[i]nability to care for oneself does not equate with a 

‘substantial probability’ that ‘death, serious physical injury, serious physical 

debilitation, or serious physical disease’ would ensue if treatment were 

withdrawn.” See Langlade Cnty. v. D.J.W., 2020 WI 41, ¶53, 391 Wis. 2d. 231, 

942 N.W.2d 277. Counsel did not present an independent, developed argument 

against the proposed order for involuntary medication and treatment. 

Circuit Court Decisions

¶18 The circuit court reached determinations regarding recommitment

that included the following. J.J.K. suffers from the mental illness of 

 

4

 The court of appeals has explained that WIS. STAT. § 51.20(1)(am) aims

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 ... [in] a vicious circle of 

treatment, release, overt act, recommitment.

State v. W.R.B., 140 Wis. 2d 347, 351, 411 N.W.2d 142 (Ct. App. 1987).
No. 2020AP2105

9

schizophrenia, which is treatable, as demonstrated by the undisputed fact that 

J.J.K. made “tremendous improvement” since the initial commitment. The 

testimony of both experts support a dangerousness finding, as seen through the 

lens of WIS. STAT. § 51.20(1)(am). The critical question is whether there was 

sufficient evidence to show that, if treatment were withdrawn, J.J.K. would not be 

“able to care for himself ... and suffer [from failure to meet] his basic needs,” 

which the court explained meant his needs “for nourishment,” “medical care,” 

“shelter[],” and “safety.” The court answered this question yes. In explaining its 

conclusion, the court referred to “a fifth standard type category,” which on its face 

evokes § 51.20(1)(a)2.e., but the language used by the court about being “able to 

care for himself” could only be reference to “the fourth standard,” 

§ 51.20(1)(a)2.d., which was the standard that had just been argued by the

County.5

¶19 Regarding the order for involuntary medication and treatment, the 

court credited the testimony of Dr. Marcus that J.J.K. “is substantially incapable of 

applying an understanding of [the] advantages, disadvantages, and alternatives to 

his condition in order to make an informed choice as to whether to accept or refuse 

psychotropic medication.” 

¶20 Based on those rulings, the court granted the County’s request to 

extend the commitment for 12 months and to order involuntary medication and 

treatment, and issued corresponding orders. J.J.K. appeals.

 

5

 The circuit court also made a passing reference to a concern that J.J.K. might 

potentially harm others if he stopped taking his medication. But the court did not appear to rest 

its decisions on this ground and further there was little in the expert testimony to support this as a 

ground for recommitment. Accordingly, I do not consider this as a basis to affirm the circuit 

court.
No. 2020AP2105

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DISCUSSION

I. LEGAL STANDARDS

A. Standards Of Review

¶21 The appellate court upholds a circuit court’s findings of fact unless 

they are clearly erroneous. Waukesha Cnty. v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 

2d 542, 895 N.W.2d 783 (involuntary commitment); Outagamie Cnty. v. 

Melanie L., 2013 WI 67, ¶¶37-38, 349 Wis. 2d 148, 833 N.W.2d 607 (involuntary 

medication and treatment). However, whether those facts fulfill the statutory 

requirements in WIS. STAT. ch. 51 presents issues of law that this court reviews de 

novo. J.W.J., 375 Wis. 2d 542, ¶15; Melanie L., 349 Wis. 2d 148, ¶¶38-39.

B. Substantive Legal Standards

Recommitment

¶22 Circuit courts have authority to extend involuntary commitments 

under WIS. STAT. § 51.20(13)(g). In considering a petition for extension, courts 

apply the criteria set forth in § 51.20(1)(a). A court may order the initial 

commitment of an individual if the petitioner shows, by clear and convincing 

evidence, that the individual meets a three-prong standard by being: (1) mentally 

ill; (2) a proper subject for treatment; and (3) currently dangerous. 

Sec. 51.20(1)(a)1., 2.a.-e., and (13)(e); J.W.K., 386 Wis. 2d 672, ¶¶17, 24. 

¶23 Under the third prong, addressing current dangerousness, WIS. STAT.

§ 51.20(1)(a)2.a.-e. sets forth five separate standards, each of which includes a 

requirement of recent acts or omissions demonstrating that the individual is a 

danger to himself or herself or others. J.W.K., 386 Wis. 2d 672, ¶17.
No. 2020AP2105

11

¶24 If a person is subject to a WIS. STAT. ch. 51 commitment order, a 

petitioner such as Rock County here may, before the expiration of the prior

commitment, petition for an extension of that commitment under WIS. STAT.

§ 51.20(13)(g)3. See J.W.K., 386 Wis. 2d 672, ¶18. Extension may be for up to 

one year. Sec. 51.20(13). The petitioner pursuing recommitment must prove by 

clear and convincing evidence that the individual is: (1) mentally ill, (2) a proper 

subject for treatment, and (3) dangerous. See § 51.20(1)(a) and (am), and (13)(e) 

and (g)3.; J.W.K., 386 Wis. 2d 672, ¶¶18, 24. This may be accomplished by 

showing that the individual is dangerous under § 51.20(1)(am). See J.W.K., 386 

Wis. 2d 672, ¶19 (observing that § 51.20(1)(am) “provides a different avenue for 

proving dangerousness”). 

¶25 As pertinent here, WISCONSIN STAT. § 51.20(1)(am) provides:

[I]f the individual has been the subject of outpatient 

treatment for mental illness, ... immediately prior to 

commencement of the proceedings as a result of a 

commitment 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. 

Our supreme court has explained that § 51.20(1)(am) “recognizes that an 

individual receiving treatment may not have exhibited any recent overt acts or 

omissions demonstrating dangerousness because the treatment ameliorated such 

behavior, but if treatment were withdrawn, there may be a substantial likelihood 

such behavior would recur.” J.W.K., 386 Wis. 2d 672, ¶19. Thus, § 51.20(1)(am) 

“functions as an alternative evidentiary path” for showing dangerousness, 

“reflecting a change in circumstances occasioned by an individual’s commitment 
No. 2020AP2105

12

and treatment” and “acknowledg[ing] 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, ¶¶19, 

24. 

¶26 Nevertheless, dangerousness must be proven to support the 

extension of an involuntary commitment, with reference to the specific 

dangerousness standards set forth in WIS. STAT. § 51.20(1)(a)2.a.-e. J.W.K., 386 

Wis. 2d 672, ¶19; see also D.J.W., 391 Wis. 2d 231, ¶34. The fourth 

dangerousness standard is pertinent here. A person is dangerous within the 

meaning of § 51.20(1)(a)2.d. if the individual is unable “to satisfy basic needs for 

nourishment, medical care, shelter or safety,” causing “a substantial probability”

of imminent “death, serious physical injury, serious physical debilitation, or 

serious physical disease.” Sec. 51.20(1)(a)2.d. 

¶27 In sum, then, the County here had to prove that J.J.K. was

dangerous, but it did not need to show recent behaviors exhibiting dangerousness 

outlined in WIS. STAT. § 51.20(1)(a)2.d., so long as it could prove a substantial 

likelihood that he would be a proper subject for commitment if treatment were 

withdrawn based on the fourth standard. See D.J.W., 391 Wis. 2d 231, ¶¶33-34.

Involuntary Medication And Treatment

¶28 There is “a presumption of competence to choose” to take or refuse 

medication, “regardless of commitment status” of the person. Melanie L., 349 

Wis. 2d 148, ¶45. I apply that presumption in the context of the following 

statutory language establishing what a petitioner must show to obtain an order for 

involuntary medication and treatment under the circumstances here:
No. 2020AP2105

13

4. ... [A]n individual is not competent to refuse 

medication or treatment if, because of mental illness, ... 

and after the advantages and disadvantages of and 

alternatives to accepting the particular medication or 

treatment have been explained to the individual, one of the 

following is true:

a. The individual is incapable of expressing an 

understanding of the advantages and disadvantages of 

accepting medication or treatment and the alternatives.

b. The individual is substantially incapable of 

applying an understanding of the advantages, disadvantages 

and alternatives to his or her mental illness ... in order to 

make an informed choice as to whether to accept or refuse 

medication or treatment.

WIS. STAT. § 51.61(1)(g)4.a.-b. The petitioner bears the burden of proving that 

one of the above conditions is met by clear and convincing evidence. Melanie L., 

349 Wis. 2d 148, ¶¶37, 55.

C. Analysis

Recommitment

¶29 J.J.K. does not argue that the County failed to meet its burden of 

showing that he is mentally ill or that he is a proper subject for treatment. See

WIS. STAT. § 51.20(1)(a)1. Instead, he argues that the testimony and reports of the 

two experts did not constitute clear and convincing evidence that J.J.K. is 

currently dangerous on the ground offered by the experts, which is that, as seen 

through the evidentiary lens permitted under § 51.20(1)(am), J.J.K. will stop 

taking his psychotropic medication and then become unable “to satisfy basic needs 

for nourishment, medical care, shelter or safety,” causing “a substantial 

probability” of imminent “death, serious physical injury, serious physical 

debilitation, or serious physical disease.” See § 51.20(1)(a)2.d. I disagree that the 

evidence is sufficient to meet the legal standards. 
No. 2020AP2105

14

¶30 The County does not dispute J.J.K.’s position that “substantial 

probability” here means “much more likely than not.” See Marathon Cnty. v. 

D.K., 2020 WI 8, ¶¶35-42, 390 Wis. 2d 50, 937 N.W.2d 901. However, J.J.K. 

fails to explain why Dr. Marcus’s testimony and report (as corroborated in some 

respects by evidence from Dr. Black) did not meet this standard by clear and 

convincing evidence, given the unrebutted testimony that J.J.K. unambiguously 

told both experts that he would stop taking his medication if not required to do so

and additional evidence that includes the following. 

¶31 As summarized above, Dr. Marcus reported that, if J.J.K. were to 

stop taking his medication, there was “a substantial likelihood of psychotic 

decompensation,” which “would result in an increased risk of dangerousness, 

primarily to self.” Dr. Marcus went on to identify in his report the “specific 

concern” that J.J.K.’s judgment “would be grossly impaired” and that his “ability 

to satisfy his basic care needs” would “decline.” “Basic care needs” appears to 

refer to the essentials of life, not just to “needs” in the sense of desires or wants, or 

involving the achievement of stereotypically comfortable living circumstances. 

This intended meaning was confirmed by Dr. Marcus when the court asked him to 

elaborate on these statements in his report. 

¶32 In elaborating, Dr. Marcus testified that “[o]ne of the most 

concerning aspects” about J.J.K.’s circumstances at the time of his initial 

commitment, when he was not on the medication,

was his residing outdoors in very cold weather and so lack 

of judgment and an inability to satisfy issues of shelter, 

issues of nutrition. There was concern that he was paranoid 

about food and was not accepting of that. There were basic 

care needs concerns which were raised in the record. 
No. 2020AP2105

15

A reasonable interpretation of this evidence is that Dr. Marcus concretely provided 

a link between past significant dangerous-to-self behavior by J.J.K. and a 

substantial likelihood of recurrence of such behavior absent an extension order. 

More to the point, this record is sufficient to support a determination that J.J.K. 

would repeat the dangerous cycle if allowed to stop taking the medications.

¶33 J.J.K. suggests that the circuit court clearly erred in its interpretation 

of the expert testimony. J.J.K. argues that neither expert “testified that [that 

expert] believed J.J.K. would abandon his apartment and resume living outdoors if 

treatment were withdrawn.” Both experts could have been more explicit and 

expansive in predicting the timing and circumstances of the self-harm that they 

foresaw resulting from psychotic decompensation. But I reject the argument that 

Dr. Marcus failed to convey in his report and testimony the opinion that there 

would be, in his words, “a substantial likelihood of psychotic decompensation,” 

leading to serious, imminent self-harm involving exposure to the elements and 

lack of basic nutrition.

¶34 I turn to the legal issue of whether this evidence satisfies the WIS.

STAT. § 51.20(1)(am)’s “dangerousness” requirement. There could be no 

reasonable argument, and J.J.K. does not attempt to make such an argument, that 

as a general matter living outdoors (even on days and nights in Wisconsin when 

the weather is not at its most inclement), when one has “an inability to satisfy 

issues of shelter” and “nutrition”—including failing to consume food based on 

mental illness—would not pose “a substantial probability” of imminent “death, 

serious physical injury, serious physical debilitation, or serious physical disease.”

¶35 Instead, J.J.K. points out that the “[i]nability to care for oneself does 

not equate with a ‘substantial probability’ that ‘death, serious physical injury, 
No. 2020AP2105

16

serious physical debilitation, or serious physical disease’ would ensue if treatment 

were withdrawn.” See D.J.W., 391 Wis. 2d 231, ¶53. This is also an accurate 

statement of the law. But the facts here differ markedly from those in D.J.W. In 

that case, the only evidence of dangerousness were concerns that D.J.W. would be 

unable to care for himself in ways that would result in him losing a job, forcing 

him to rely on disability for income, and requiring him to continue to live with 

family. See id., ¶51. Here, in contrast, Dr. Marcus’s testimony was not merely 

that, once off the medication, J.J.K. would have a somewhat reduced ability to 

care for himself, perhaps in such relative innocuous areas as worsened hygiene or 

less-than-optimal nutrition. Instead, given the history, the evidence as a whole 

could be reasonably interpreted as a prediction that J.J.K.’s mental illness would 

cause him to again expose himself to serious physical harm through extreme 

exposure to the elements and malnourishment. 

¶36 J.J.K. also points out that “[i]t is not enough that the individual was 

at one point a proper subject for commitment. The County must prove the 

individual ‘is dangerous.’” See J.W.K., 386 Wis. 2d 672, ¶24 (quoted source and 

emphasis omitted). This is an accurate statement of the law. But the testimony 

here was not merely that J.J.K. once was at risk of serious physical injury through 

exposure and malnutrition; the evidence from the experts as a whole could 

reasonably be interpreted to stand for the proposition that he would be at that same 

risk as a consequence of refusing medication, as he says he will absent a court 

order.

¶37 J.J.K. emphasizes the testimony of the experts that, while 

consistently medicated and notably improved by the time of the recommitment 

hearing, J.J.K. expresses relative contentment with his current independent living 

in an apartment, and suggests that this must mean that the predictions of Dr. 
No. 2020AP2105

17

Marcus that an un-medicated J.J.K. would revert to highly dangerous outdoor 

living cannot be credited. This argument ignores the effect of WIS. STAT.

§ 51.20(1)(am), which allows the courts to consider testimony that a person is in 

fact currently dangerous based on a link between demonstrated prior dangerous 

behavior and the dangerous behavior that would ensue when treatment is 

terminated.

¶38 My analysis follows the reasoning in Winnebago County v. S.H., 

2020 WI App 46, 393 Wis. 2d 511, 947 N.W.2d 761, which I am obligated to 

follow as a published opinion of this court following conversion of the case from 

one-judge to three-judge status. In concluding that the petitioner in S.H. met its 

burden of proving the committed person to be dangerous under WIS. STAT.

§ 51.20(1)(am), the court observed that “[d]angerousness in an extension 

proceeding can and often must be based on the individual’s precommitment 

behavior, coupled with an expert’s informed opinions and predictions (provided, 

of course, that there is a proper foundation for the latter),” all of which “involve[ ] 

a fact-intensive weighing of the evidence so as to arrive at an educated conclusion 

as to the likelihood of reoccurring dangerousness.” S.H., 393 Wis. 2d 511, ¶13 & 

n.6. 

¶39 J.J.K. argues for the first time in his reply brief on appeal that the 

recommitment order must be reversed because the circuit court failed to provide 

“specific factual findings with reference to the subdivision paragraph of WIS.

STAT. § 51.20(1)(a)2. on which the recommitment is based,” as required in 

D.J.W., 391 Wis. 2d 231, ¶¶3, 43. The argument is that the circuit court “did not 

mention” the fourth standard (§ 51.20(1)(a)2.d.) “anywhere in its findings or 

order, and only specifically references the fifth standard, WIS. STAT.

§ 51.20(1)(a)2.e.”
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18

¶40 The first problem with this argument is timing; the County lacks a 

fair opportunity to address it.6 See A.O. Smith Corp. v. Allstate Ins. Cos., 222 

Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (“It is inherently unfair for an 

appellant to withhold an argument from its main brief and argue it in its reply brief 

because such conduct would prevent any response from the opposing party.”). I 

reject it on that basis. It would be unfair to the County to reverse based on this 

new argument in the reply brief.

¶41 I also observe that the record reflects that the circuit court was 

contemplating the applicable fourth standard, and simply misspoke in referring to 

“the fifth standard.” See WIS. STAT. § 51.20(1)(a)2.d., e. It would have made no 

sense for the court to have talked about J.J.K. not being “able to care for himself 

and suffer [from failure to meet] his basic needs,” including his needs “for 

nourishment,” “medical care,” “shelter[],” and “safety,” in connection with the 

fifth standard. Further, as noted above, the County’s argument was clearly based 

on a combination of § 51.20(1)(a)2.d. and § 51.20(1)(am), and the court’s decision 

immediately followed arguments by both sides. Ideally, counsel for both sides 

would have assisted the circuit court by calling to its attention this misstatement,

but neither did. In any case, any error was surely harmless. I do not interpret 

D.J.W., 391 Wis. 2d 231, ¶¶3, 43, to put form over substance in a manner that 

would require reversal on this record. Because it is obvious that the only standard 

to which the circuit court here was referring was the fourth standard, there is no 

 

6

 J.J.K. states in his opening appellate brief that the circuit court referenced “the fifth 

standard” in explaining its decision, but this does not constitute the argument that appears in the 

reply brief that, in itself, this is a basis for reversal. Instead, the challenge to recommitment in the 

opening brief is based exclusively on allegedly insufficient evidence.
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risk here of the “guesswork” on appeal that our supreme court sought to avoid by 

instituting the new requirement for specific factual findings. Id., ¶45.

Involuntary Medication And Treatment

¶42 J.J.K. argues that the County failed to overcome the presumption 

that he was competent to refuse medication with clear and convincing evidence 

that satisfies WIS. STAT. § 51.61(1)(g)4.a.-b., quoted above. As he correctly points 

out, this involves the “‘significant liberty interest in avoiding forced medication of 

psychotropic drugs.’” Melanie L., 349 Wis. 2d 148, ¶43 (quoted source omitted).

¶43 The experts here granted that J.J.K. was “[]capable of expressing an 

understanding of the advantages and disadvantages of accepting medication or 

treatment and the alternatives,” and therefore WIS. STAT. § 51.61(1)(g)4.a. is off 

the table. However, I conclude that the County presented sufficient proof that 

J.J.K. was “substantially incapable of applying an understanding of the 

advantages, disadvantages and alternatives to his or her mental illness ... in order 

to make an informed choice as to whether to accept or refuse medication or 

treatment,” see § 51.61(1)(g)4.b. The County overcame the presumption that 

J.J.K. was competent to make an informed choice to refuse medication.

¶44 As summarized above, Dr. Marcus testified that J.J.K. was not able 

to apply an understanding of the advantages and disadvantages of the medication 

to his situation, because he “did not believe he had a treatable mental illness which 

would require this type of medication.” That is, according to Dr. Marcus, J.J.K.’s 

incapacity on this topic arises largely from his misunderstanding that the 

medication could do him no good; he could not weigh the advantages and 

disadvantages of medication because he fails to recognize what Dr. Marcus 

testified was “fairly significant[]” therapeutic value for him. J.J.K. fails even to 
No. 2020AP2105

20

attempt to come to grips with this testimony, and therefore implicitly concedes 

that J.J.K. could not recognize any advantage of medication. 

¶45 J.J.K.’s argument on this topic is entirely based on the premise that 

there was insufficient evidence that anyone explained to J.J.K. other treatment 

alternatives besides psychotropic medications. This argument is based on the 

requirement that “it is the responsibility of medical experts who appear as 

witnesses for the county to explain how they probed the issue of whether the 

person can ‘apply’ his or her understanding to his or her own mental condition.” 

See Melanie L., 349 Wis. 2d 148, ¶75.

¶46 As summarized above, Dr. Marcus testified that he explained to 

J.J.K. that the medication would treat his paranoia and reduce agitation and lability 

and that it would cause “sedation, abnormal muscle movements, weight gain, 

metabolic disturbance, pain at the injection site,” and restlessness. Dr. Marcus 

also “[v]ery briefly mentioned” to J.J.K. “that other psychotropic medications, 

either oral or injectable, can sometimes be used and that other interventions like 

therapy and case management services can be provided.” 

¶47 There was no cross examination of either Dr. Marcus or Dr. Black, 

or other evidence, that could undermine the determination that Dr. Marcus 

sufficiently conveyed in his testimony that he engaged with J.J.K. in a meaningful

discussion of alternative modes of treatment and their advantages and 

disadvantages. The requirement that experts explain “how they probed the issue 

of whether the person can ‘apply’ his or her understanding to his or her own 

mental condition,” as required in Melanie L., was largely satisfied by the 

unambiguous testimony about how they discussed with J.J.K. his mental illness 

and how he fails to recognize that he is mentally ill and that the medication 
No. 2020AP2105

21

benefits him, even to a small degree, contrary to the facts. See id. His 

fundamental misunderstanding makes it impossible for him to make an informed 

choice. Our supreme court has recognized that “[i]t may be true that if a person 

cannot recognize that he or she has a mental illness, logically, the person cannot 

establish a connection between his or her expressed understanding of the benefits 

and risks of medication and the person’s own illness.” Id., ¶72.

¶48 I conclude that the testimony and reports of the two experts here are 

sufficient. Beyond that evidence, it supports my conclusion regarding J.J.K.’s 

awareness of alternatives that Dr. Marcus’s report reflects that he was receiving 

services from both an outpatient psychiatrist and a case manager. Consistent with 

this, Dr. Black testified that J.J.K. had “case management” and “community-based 

contacts.”

CONCLUSION

¶49 For all these reasons, I affirm the recommitment and involuntary 

medication and treatment orders.

By the Court.—Orders affirmed.

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

809.23(1)(b)4.