Rock Cnty. v. J. J. K. (In re Commitment of J.J.K.)

CourtCourt of Appeals of Wisconsin
Docket NumberAppeal No. 2020AP1085
Decision Date29 April 2021



Appeal No. 2020AP1085


April 29, 2021


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.

Cir. Ct. No. 2020ME2

APPEAL from orders of the circuit court for Rock County: JEFFREY KUGLITSCH, Judge. Affirmed.

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¶1 NASHOLD, J.1 J.J.K. appeals an involuntary recommitment order entered pursuant to WIS. STAT. § 51.20 and an involuntary medication order entered pursuant to WIS. STAT. § 51.61(1)(g)3. After first addressing the issue of mootness, J.J.K. argues that: (1) the circuit court's admission of, and reliance on, hearsay evidence of dangerousness constitutes plain error; (2) the circuit court failed to find, and the County failed to prove, that J.J.K. was dangerous to himself or others as required by § 51.20(1)(a)2.; and (3) the County did not prove that J.J.K. was substantially incapable of applying an understanding of the advantages and disadvantages of medication to his condition within the meaning of § 51.61(1)(g)4. I affirm.


¶2 On January 6, 2020, Rock County filed a Statement of Emergency Detention, which alleged that J.J.K. evidenced behavior that constituted a substantial probability of physical harm to self or to others. At the time of J.J.K.'s detention in January of 2020, J.J.K. was living outdoors underneath a bridge and refused to live in an apartment that was made available to him through the County. J.J.K. had also recently refused food that was offered by a County employee, stating that he did not "know what [the County employee] put in it."

¶3 On January 15, 2020, a commitment hearing was held, at which the County presented the testimony of psychiatrist Dr. Jeffrey Marcus and psychologist Dr. Kevin Miller, whose reports were received into evidence. In forming their opinions, Drs. Marcus and Miller relied on their mental status

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examinations of J.J.K. and on collateral sources, such as police reports, the emergency detention statement, and records from Winnebago Mental Health Institute (Winnebago).

Dr. Marcus's Testimony and Report

¶4 Dr. Marcus testified that J.J.K. suffers from a mental illness which he diagnosed as "unspecified psychotic disorder" possibly due to schizophrenia, and that J.J.K. is a proper subject for treatment. Dr. Marcus explained that he observed paranoid thinking and ideation in J.J.K., which involved J.J.K.'s beliefs that he was being mistreated by Rock County personnel. Dr. Marcus further testified that J.J.K. had been previously diagnosed with autism spectrum disorder but that J.J.K's psychosis and paranoia would not be caused from autism spectrum disorder.

¶5 Dr. Marcus believed that J.J.K was a danger to himself because, if left to his own devices, J.J.K. would continue to live homeless in cold winter weather, even though the County had arranged for him to live in an apartment. Dr. Marcus believed there were "paranoid underpinnings" to J.J.K.'s refusal to accept housing from the County. Dr. Marcus acknowledged that he was not aware of any adverse medical conditions that J.J.K. had suffered related to the weather and that J.J.K. was not malnourished.

¶6 With respect to medication, Dr. Marcus testified that he believed medication would have therapeutic value for J.J.K. and that J.J.K. understood the advantages and disadvantages of the medication that Dr. Marcus had explained to him. Although Dr. Marcus agreed that "psychosocial therapy" was a possible alternative, he stated that "[m]edications, particularly [for] paranoia, would be ... by far the type of treatment ... modality that you'd want to use." Dr. Marcus

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testified that J.J.K. could not apply his understanding of the medications to his current situation because he "did not see the value in taking" the medication, "did not believe he had a condition for which this medication would offer benefit," and would discontinue the medication if not required to take it. Dr. Marcus testified that J.J.K.'s inability to apply his understanding is "at least in part ... related to his mental illness." His report indicates that J.J.K.'s inability is due to mental illness and developmental disability.

Dr. Miller's Testimony and Report

¶7 Dr. Miller testified that J.J.K. has a mental illness that Dr. Miller diagnosed as "unspecified schizophrenia spectrum or other psychotic disorder" and that J.J.K is a proper subject for treatment.

¶8 Dr. Miller testified that J.J.K. was a "significant risk of harm" to others. His report states that J.J.K. is dangerous because he evidenced a "substantial probability of physical harm to other subjects as manifested by evidence of recent homicidal or other violent behavior, or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm."

¶9 In concluding that J.J.K. is a danger to others, Dr. Miller relied in part on a police report showing that J.J.K. had been aggressive toward law enforcement a few weeks before J.J.K. was taken into detention. Dr. Miller's report quoted an excerpt from a police report,2 stating that on December 13, 2019,

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in response to a citizen complaint, law enforcement made contact with J.J.K., who swore at the officers, eventually picked up a large rock, and "came at the officers in an assaultive manner," resulting in law enforcement attempting to tase J.J.K. When tasing was unsuccessful due to J.J.K.'s winter clothing, law enforcement attempted to use oleoresin capsicum (OC) spray, but when that was also unsuccessful, an officer knocked J.J.K. to the ground. J.J.K. was then arrested for "resisting or obstructing and battery or threats to law enforcement" and held at the Rock County Jail.

¶10 Dr. Miller also relied on reports from Winnebago indicating that after J.J.K. was admitted to Winnebago and refused medication, on January 9, 2020, while being physically restrained and administered involuntary medication, J.J.K. threatened to "fuck someone up" upon being released from restraints. Dr. Miller also stated that during his interview with J.J.K., J.J.K. said that the judge who initially ordered the involuntary medication would "go down" for ordering treatment "illegally," but that J.J.K. refused to elaborate on what he meant by that statement.

¶11 In his report, Dr. Miller stated that, due to J.J.K.'s mental illness, he was 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 the recommended medication or treatment. Dr. Miller's report further stated that J.J.K. "did not believe he had any issues requiring help."

J.J.K.'s Testimony

¶12 J.J.K. testified on his own behalf. When asked how he adapted to the weather, J.J.K. explained that he had clothing such as "bibs," "overalls,"

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sweatshirts, stocking caps, and face masks. He testified that "[b]asically I warmed up when I needed to. Put on more clothes—clothing when I needed to. Did what I need to [do] to stay dry and not too wet."

¶13 He testified that he had a representative payee and had received food stamps. J.J.K. confirmed that he had access to food, clean water, and medical care. He stated that he chose not to move into an apartment offered to him by the County because he believed moving into the apartment would delay his ultimate goal—to move back to the state of Oregon to be near his sister and daughter.

¶14 Regarding the threatening comment J.J.K. made at Winnebago, J.J.K. testified, "I was frustrated and I was angry and I was hallucinating a little because of the medication. So I questioned the medication, and at that point, yeah, I made that comment. It was not intentional." He testified that he had not tried to hurt himself or anyone else at Winnebago. He stated that he did not have any intention of harming the judge who presided over his probable cause hearing. J.J.K. acknowledged his mental illness, stating: "I have a mental illness ... which I categorize as [something that I am] able to manage and to be able to function in society. I do struggle, I will admit that. We all do struggle sometimes. But I mean I'm able to function. I'm able to survive. I know how."

¶15 The circuit court asked J.J.K. if he would take his medications, and J.J.K. responded:

That's a tough question because a lot of medications fog up my ability to be able to concentrate and to be able to function. The last time I was on the medication, I was basically one of those people that was a walking zombie. You talked to me, it took me about a few seconds to answer you because I was so, you know, hyped up on meds would be the proper term, that I was just not there.

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And I'm definitely afraid that this is going to happen again. I apologize.

When asked by his counsel to elaborate about why he did not want to take the medications, J.J.K. responded:

A lot of medications in which I've been prescribed like Ambien, Wellbutrin, you know, Risperdal and, you know, medium to higher doses have made me so foggy I can't -- I can't even do Sudoku, which is what I love to do. So I don't even think enough to even do those....


That's why I refuse to take it, is because I don't like the way it makes me feel.


I'm able to function without it.

The Circuit Court's Decision

¶16 The circuit court determined that the County met its burden for involuntary commitment and medication. The court concluded that J.J.K. suffers from a treatable mental illness and that he "creates a danger to himself or to others." Regarding dangerousness to others, the court noted that J.J.K. had behaved...

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