Submitted on Briefs: January 17, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis.2d
262, 881 N.W.2d 359 (2016 - Unpublished)
of a decision of the Court of Appeals. Affirmed.
Court Waukesha County L.C. 2009ME1158 William Domina Justices
the respondent-appellant-petitioner, there were briefs filed
by and an oral argument by Kaitlin A. Lamb, assistant state
the petitioner-respondent, there was a brief filed by and
oral argument by Robert J. Mueller, corporation counsel.
SEPARATE WRITING: ABRAHAMSON, J. writes separately, joined by
A.W. BRADLEY, J.
The petitioner, J.W.J., is an adult suffering from paranoid
schizophrenia. He is currently subject to an involuntary
commitment order and an order requiring him to undergo
treatment and take medication prescribed for his condition.
Waukesha County seeks to extend those orders for an
additional year; Mr. J. says further involuntary commitment
and treatment will not rehabilitate him, so he is not a
proper subject for treatment within the meaning of Wis.Stat.
§ 51.20(1) (2015-16). We review the unpublished decision of
the court of appeals affirming the Waukesha County circuit
court's extension of those orders.
Mr. J. is a 55-year-old man who has suffered from mental
health or substance abuse issues for most of his life. He has
been subject to commitment orders almost continuously from
1990 to 2008, at which time he started an 18-month prison
term. Upon release in 2009 he was adjudged so psychotic and
threatening to others that he was immediately subjected to a
new set of commitment orders that have been in place since
On June 16, 2015, Waukesha County filed a petition to extend
Mr. J.'s involuntary commitment and treatment orders. At
the time of the petition, Mr. J. was attending his
appointments, receiving medication, and living independently
in the community. The County's current petition
represents the sixth extension of Mr. J.'s commitment and
Mr. J.'s medical records provide a sense of his
longstanding, continual struggles from his youth up through
Mr. J has a lengthy history of drug and alcohol
abuse. Marijuana, LSD and barbiturates abuse started at the
age of 15 if not earlier. In 1979, at the age of 17, he
experienced an LSD overdose which required treatment at the .
. . Child and Adolescent Center. He was diagnosed with Drug
[I]n-patient treatment periods extend from 1980 through 2014
. . .; approximately 12 psychiatric admissions to the [Mental
Health Center]. Additionally, psychiatric treatment at the .
. . Resource Center during his incarceration.
Mr. J. has a history of criminal behaviors over the years
including car theft, robberies, two DWI, burning down a field
as well as a 2008 conviction for selling marijuana out of a
[store] . . . he ran in [a certain municipality]. His prison
sentence was 18 months. During this period of time he became
quite upset and wrote a threatening letter to his mother as
well as [a] sexually explicit letter to the female warden.
Mr. J was committed in 2009 . . . [and] has been under
commitment almost consistently since 1990.
Over the course of mental health treatment Mr. J. has shown a
significant lack of insight into his mental illness and a
lengthy history of not cooperating with taking psychiatric
medications. Many of his hospitalizations occurred after a
period of refusing medications with the expected results that
Mr. J. became increasingly more paranoid, rambling/pressured
speech, sleep problems, often times experiencing command-type
auditory hallucinations to kill himself or others along with
depression and/or agitated behaviors. Significant alcohol
usage has also continued over the years. Mr. J. continues to
insist that it is the psychotropic medications which causes
all of his mental health symptoms.
The last hospitalization . . . 3/1/14 to 3/27/14 occurred
after he was taken by the Sheriff's Department to get his
IM [intramuscular] injection which he had previously refused
to get. Mr. J. was noted by the attending MD to be rambling
and bizarre. Patient complained of "the beast"
throwing glass around his apartment. He wanted the police to
get him a tank and bombs so that he could kill the beast. He
was then admitted to the [Mental Health
The Recommitment Report filed along with the County's
petition to extend Mr. J.'s commitment described Mr.
J.'s status in 2015:
Mr. J. is making his appointments and is receiving his IM
medication. He has been [sic] maintained his current housing
and remains [in] the community. There [have] been no
inpatient hospitalizations this past year. Mr. J. is
experiencing a number of medical problems which may be due to
his current medication. . . . His diagnoses are Axis I
Schizophrenia, Alcohol Use Disorder and History of Cannabis
Use Disorder. He continues to state he is allergic to all
psychotropic medication. He at the last shot appointment said
the medication makes him feel like he is being murdered every
night. Given the medication changes being made and Mr.
J's lack of insight into his illness [the advanced
practice nurse prescriber] is requesting an extension of the
Doctor Koch tried to personally examine Mr. J. in 2015 in
connection with his involuntary commitment but could not
because Mr. J. would not allow it: "Mr. J. contacted
this examiner by telephone and he quickly stated that he
would not cooperate in a personal interview and he would not
answer questions over the telephone. Mr. J. disconnected the
call prior to this examiner being able to read him his
rights." Consequently, Dr. Koch based the Report on Mr.
J.'s existing medical records and other information he
was able to assemble without a personal examination.
Dr. Koch's evaluation resulted in this assessment:
This past treatment year Mr. J. has not been hospitalized. He
has maintained his current housing and remains in the
community. Mr. J. has been compliant with psychotropic
medications but he has stated that he is "allergic"
to all psychotropic medications. He continues to show lack of
insight into his illness.
Koch checked the boxes in the Report that indicate it was his
opinion, to a reasonable degree of professional certainty,
that Mr. J. is mentally ill,  dangerous,  is an appropriate
subject for outpatient treatment, and that psychotropic
medication would be therapeutically valuable to him. Dr. Koch
also wrote that Mr. J.'s mental illness makes him
"substantially incapable of applying an understanding of
the advantages, disadvantages and alternatives in order to
make an informed choice as to whether to accept or refuse
psychotropic medication." Dr. Koch concluded that
"[t]here is nothing in [Mr. J.'s] record to suggest
there has been any significant change in his status. He
continues to be a patient who has a history of improved
behaviors when appropriately medicated and deterioration in
the ability to function in the community when not
At the hearing on the County's petition to extend Mr.
J.'s commitment, Dr. Koch testified consistently with his
report. In particular, he said Mr. J.'s schizophrenia is
treatable "to the extent that when treated with
medications . . . his behavior is improved and he can survive
in the community." He explained that this treatment
lessens the disordering of Mr. J.'s thought, mood, and
Dr. Koch also explained why he believes Mr. J. is dangerous.
He testified that Mr. J.'s "history is one of
inconsistent utilization of psychotropic medications. When
he's not appropriately medicated, he becomes increasingly
more agitated, paranoid, grandiose at times, and he started
having hallucinations, demand hallucinations to either harm
himself or others." However, "[w]hen he's
taking medications, while some of those experiences and
symptoms may still be present, he doesn't act on
Doctor Koch said he does not believe Mr. J. would take his
medications absent a court order to do so: "[T]he
current evidence from the extension report as well as my
prior history with him and his behaviors indicates that when
not ordered to take psychotropic medications that he
doesn't do it." And without his medications, Dr.
Koch said, Mr. J. would require confinement for inpatient
When the hearing concluded, the circuit court granted the
County's petition. It found that Mr. J. continues to
suffer from a mental illness (in the form of paranoid
schizophrenia), he is a proper subject for treatment and
benefits from it, he can function in the community in large
part because of this treatment, and he satisfies the
definition of "dangerousness" because if treatment
were to cease, he would be a proper subject for commitment.
The court extended Mr. J.'s involuntary commitment order
for 12 months. It also extended the medication and treatment
order, which requires Mr. J., inter alia, to attend his
appointments, take his medications as prescribed, not engage
in any acts or attempts or threats to harm himself or others,
and not take any non-prescription controlled substances or
The court of appeals, in a concise opinion, affirmed the
circuit court in all respects. The court of appeals applied
the analytical framework we described in Fond du Lac
County v. Helen E.F., 2012 WI 50, 340 Wis.2d 500, 814
N.W.2d 179, and found that because Mr. J. has rehabilitative
potential, he was a "proper subject of treatment."
We granted Mr. J's petition for review and now affirm.
STANDARD OF REVIEW
This case requires us to interpret provisions of Wis.Stat.
ch. 51. While our review of questions of law is independent
from the circuit court and court of appeals, we benefit from
their analyses. State v. Steffes, 2013 WI 53,
¶15, 347 Wis.2d 683, 832 N.W.2d 101.
We must also review whether the County has met its burden of
proof to support extension of Mr. J.'s commitment. This
presents a mixed question of law and fact. We uphold a
circuit court's findings of fact unless they are clearly
erroneous. K.N.K. v. Buhler, 139 Wis.2d 190, 198,
407 N.W.2d 281 (Ct. App. 1987). Whether the facts satisfy the
statutory standard is a question of law that we review de
Mr. J. wishes to live his life free of Waukesha County's
commitment and medication orders because he believes they
have brought him as much rehabilitation as they are capable
of bringing. Waukesha County, however, says that Mr. J.'s
condition will deteriorate if the orders lapse, making him a
danger to himself and those around him.
There is, of course, an inherent tension between the
public's interest in involuntarily treating an individual
and that individual's liberty interest. On the treatment
side, the people of Wisconsin have recognized the challenges
that mental illness, developmental disabilities, and
substance abuse present--both to the public and the
individuals suffering from such disorders. So "[i]t is
the policy of the state to assure the provision of a full
range of treatment and rehabilitation services . . . for all
mental disorders and developmental disabilities and for
mental illness, alcoholism and other drug abuse."
Wis.Stat. § 51.001(1).
However, not all who could benefit from such services will
partake of them. And of those who will not, there will be a
subset whose condition will make them dangerous--either to
themselves, or to others. To ward against the danger their
condition presents, our statutes provide for involuntary
commitment when: "1. The individual is mentally ill or .
. . drug dependent or developmentally disabled and is ...