                                                                      2019 WI 54

                  SUPREME COURT                OF   WISCONSIN
CASE NO.:               2018AP1574
COMPLETE TITLE:         In the matter of the mental commitment
                        of J. W. K.:
                        Portage County,
                                   Petitioner-Respondent,
                             v.
                        J. W. K.,
                                   Respondent-Appellant-Petitioner.
                              REVIEW OF DECISION OF THE COURT OF APPEALS

OPINION FILED:          May 21, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          December 11, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Portage
   JUDGE:               Thomas T. Flugaur

JUSTICES:
   CONCURRED:           DALLET, J., concurs and dissents, joined by
                        ABRAHAMSON, J. and A.W. BRADLEY, J. (opinion
                        filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:



       For the respondent-appellant-petitioner, there were briefs
filed by Katie R. York, assistant state public defender. There
was an oral argument by Katie R. York.


       For the petitioner-respondent, there was a brief filed by
Briana       L.     Sweeney    and   Interim   Deputy   Corporation    Counsel,
Stevens Point. There was an oral argument by Briana L. Sweeney.
                                                                          2019 WI 54
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.   2017AP1574
(L.C. No.   2013ME18B)

STATE OF WISCONSIN                              :            IN SUPREME COURT

In the matter of the mental commitment of
J.W.K.:

Portage County,                                                         FILED
            Petitioner-Respondent,                                MAY 21, 2019
      v.                                                             Sheila T. Reiff
                                                                  Clerk of Supreme Court
J.W.K.,

            Respondent-Appellant-Petitioner.




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


      ¶1    REBECCA GRASSL BRADLEY, J.              An issue is moot when its
resolution    will    have     no   practical   effect       on   the     underlying
controversy.       In this review of a Chapter 51 recommitment order,
we    consider       whether        J.W.K.'s    sufficiency-of-the-evidence
challenge to the 2016 order extending his commitment is rendered

moot because the 2016 order expired after the court extended his
commitment    in    2017   under     a   separate    order.1        Reversing       the


      1Wisconsin Stat. § 51.20 uses "recommitment" and "extension
of a commitment" interchangeably and we do as well.           See
§ 51.20(13)(g)2r ("Twenty-one days prior to expiration of the
                                                      (continued)
                                                                              No.    2017AP1574



expired        2016   order    for     insufficient          evidence        would    have   no
effect on subsequent recommitment orders because later orders
stand     on    their    own     under      the       language   of    the    statute.        We
therefore hold that J.W.K.'s sufficiency challenge is moot, and
we affirm the court of appeals' decision dismissing the appeal.2
                                      I.     BACKGROUND
      ¶2        J.W.K. was originally committed in February 2016 for
six months under Wis. Stat. § 51.20 (2017-18).3                               In July 2016,
Portage        County    filed    a    petition          seeking      to    extend    J.W.K.'s
commitment for twelve months.                     The petition alleged J.W.K.:               (1)
was     "currently       committed          for       involuntary      treatment"       at   an
inpatient facility; (2) was a proper subject for commitment; (3)

had   the      mental    illness       of    schizophrenia;           (4)    was    "presently
dangerous        as     set    forth       in     Sec.    51.20(1)(a)         or     based   on

period of commitment under subd. 1., the department . . . shall
file an evaluation of the individual and the recommendation of
the department or county department regarding the individual's
recommitment with the committing court and provide a copy of the
evaluation and recommendation to the individual's counsel and the
counsel designated under sub. (4). . . . A failure of the
department or the county department to which an individual is
committed to file an evaluation and recommendation under this
subdivision does not affect the jurisdiction of the court over a
petition   for   recommitment."  (emphasis   added));  see   also
§ 51.20(13)(g)3 ("Upon application for extension of a commitment
by the department or the county department having custody of the
subject, the court shall proceed under subs. (10) to (13)."
(emphasis added)).
      2Portage Cty. v. J.W.K., No. 2017AP1574, unpublished slip
op. (Wis. Ct. App. Jan. 24, 2018).
      3All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.


                                                  2
                                                                        No.    2017AP1574



[J.W.K.'s] treatment record . . . would be a proper subject for
commitment if treatment were withdrawn as evidenced by:                          in the
past       when    commitment     has   expired,      [J.W.K.]    has     discontinued
psychotropic medications and became a danger to self or others
or demonstrated inability to care for self"; and (5) was "not
competent to refuse psychotropic medication or treatment."
       ¶3         The   circuit   court   held    a    hearing    on    the    extension
petition in August 2016.                At the hearing, the County presented
only the testimony of Dr. James Persing, who testified J.W.K.
was    suffering        from    schizophrenia,        and   the   symptoms      included
"most       prominently . . . delusional               thinking     and       paranoia."
Persing said that J.W.K. was being treated with medication, and

this medication helped "organize [J.W.K.'s] thought processes"
and clear his delusional thinking and hallucinations.                           Persing
also opined that J.W.K. would be a proper subject for commitment
if    treatment         were   withdrawn.        On   cross-examination,         Persing
clarified that he based his opinion on J.W.K.'s "history" and
"overall struggles with chronic mental illness for many years

with variable levels of compliance with treatment, and leading
up to a point of [a] variety of altercations."                         The doctor made
clear J.W.K.'s "need for mental health commitment."4
       ¶4         J.W.K. testified on his own behalf.             When his attorney
asked whether he understood the hearing was to determine whether


       4
       Persing based his opinion primarily on J.W.K.'s treatment
history; he met with J.W.K. for "approximately five minutes or
less."


                                            3
                                                                               No.     2017AP1574



his   commitment        would     be    extended,        J.W.K.      responded         that    the
hearing "involve[d] more than that," and proceeded to tell the
circuit     court       that     his    family         was    stealing      his        money       by
"breaking         and     entering           into"           his     "private           property
and . . . private              home . . . and           removing"          his         important
"documents."         When his attorney interrupted to redirect him,
J.W.K. told the circuit court he would continue treatment on an
outpatient basis and take his medication even if he were not
committed.
      ¶5     At the conclusion of the testimony, the circuit court
found the statutory dangerousness standard was satisfied because
"there     is a    substantial         likelihood        that [J.W.K.] would                  be   a

proper     subject      for     commitment        if    treatment         were    withdrawn."
Accordingly, the circuit court extended J.W.K.'s commitment for
twelve months, ending on August 2, 2017.
      ¶6     J.W.K. did not timely appeal this order, but filed a
pro   se   motion       asking    for    an    extension           "due   to     the    lack       of
exchange of information due to conflicting interest."                                  The court

of    appeals           granted        the     motion,             reinstated           J.W.K.'s
postconviction rights and gave J.W.K. until April 24, 2017 to
seek postcommitment relief.                  The State Public Defender's office
appointed counsel for J.W.K.                 On April 3, 2017 his counsel filed
a notice of intent to seek postcommitment relief and on August
7, 2017 filed a notice of appeal.
      ¶7     Meanwhile, with J.W.K.'s 2016 extension order expiring
on August 2, 2017, the County filed a petition seeking another


                                              4
                                                                      No.    2017AP1574



twelve-month extension of J.W.K.'s commitment, which the circuit
court granted after holding a hearing on July 21, 2017.
      ¶8     In September 2017, the court of appeals ordered J.W.K.
to file a memorandum addressing whether his appeal of the August
2016 order was moot, given he filed his notice of appeal after a

new   order extending         his    commitment     had    been entered       in   July
2017.       After considering submissions addressing mootness from
J.W.K. and the County, the court of appeals dismissed the appeal
as moot "because J.W.K. is no longer subject to the order being
appealed."        The court of appeals acknowledged that "exceptions
to dismissal based on mootness exist, as for example, when an
issue is of great public importance or arises frequently but

evades review," but it did not consider the mootness exceptions
because     J.W.K.     did    "not    argue      that   any   of    the     exceptions
appl[ied] in this case."
      ¶9     J.W.K. petitioned for review, arguing his appeal was
not moot and asserting the evidence presented at the August 2016
extension hearing was insufficient to prove he was dangerous.
We granted the petition.
                                     II.    ANALYSIS
                              A.    Standard of Review
      ¶10    Mootness is a question of law we review de novo.                       PRN
Assocs.     LLC   v.   DOA,    2009    WI    53,    ¶25,   317     Wis. 2d 656,    766
N.W.2d 559.        J.W.K.'s argument requires us to interpret Wis.
Stat. § 51.20; statutory interpretation is a question of law we
review de novo.          Waukesha Cty. v. J.W.J., 2017 WI 57, ¶14, 375
Wis. 2d 542,       895       N.W.2d 783.           "[S]tatutory      interpretation
                                             5
                                                                                No.     2017AP1574



'begins with the language of the statute.'"                             State ex rel. Kalal

v.     Circuit    Court        for    Dane        Cty.,         2004    WI     58,     ¶45,    271
Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted).                                    We give
statutory language "its common, ordinary, and accepted meaning,
except that technical or specially-defined words or phrases are
given their technical or special definitional meaning."                                  Id.    If
this process yields a plain meaning, our inquiry ends.                                 Id.
                                      B.     Discussion
       ¶11     Before     addressing             J.W.K.'s        substantive          claim     on
sufficiency       of     the     evidence,            we    must       first    consider       the
threshold issue of whether J.W.K.'s appeal is moot.                                       If the
appeal    is     moot,    then       we     do    not      reach       J.W.K.'s      sufficiency

argument.        "An issue is moot when its resolution will have no
practical effect on the underlying controversy."                                     PRN Assocs.
LLC,    317    Wis. 2d 656,          ¶25;    see        also    City     of    Racine    v.    J-T
Enters. of Am., Inc., 64 Wis. 2d 691, 700, 221 N.W.2d 869 (1974)
("This court has consistently adhered to the rule that a case is
moot when 'a determination is sought which, when made, cannot
have     any    practical       effect           upon      an    existing      controversy.'"
(quoted source omitted)).

       A moot case has been defined as one which seeks to
       determine an abstract question which does not rest
       upon existing facts or rights, or which seeks a
       judgment in a pretended controversy when in reality
       there is none, or one which seeks a decision in
       advance about a right before it has actually been
       asserted or contested, or a judgment upon some matter
       which when rendered for any cause cannot have any
       practical legal effect upon the existing controversy.



                                                  6
                                                                                   No.     2017AP1574



Fort Howard Paper Co. v. Fort Howard Corp., 273 Wis. 356, 360,

77 N.W.2d 733 (1956) (quoted source omitted); see also State ex
rel. Ellenburg v. Gagnon, 76 Wis. 2d 532, 535, 251 N.W.2d 773
(1977).
      ¶12      Appellate        courts     generally            decline       to     reach        moot
issues, and if all issues on appeal are moot, the appeal should
be dismissed.          See id.; PRN Assocs. LLC, 317 Wis. 2d 656, ¶¶25,
29.       We    may,       however,       choose          to   address     moot          issues     in
"exceptional         or    compelling       circumstances."                J-T      Enters.,       64
Wis. 2d at 702.            There are several established exceptions under
which this court may elect to address moot issues:                                        (1) "the
issues         are        of    great       public             importance;"              (2)      "the

constitutionality of a statute is involved;" (3) the situation
arises so often "a definitive decision is essential to guide the
trial    courts;"         (4)   "the    issue        is    likely     to   arise         again    and
should be resolved by the court to avoid uncertainty;" or (5)
the issue is "capable and likely of repetition and yet evades
review."        G.S. v. State, 118 Wis. 2d 803, 805, 348 N.W.2d 181
(1984).     With these principles in mind, we turn to the record to
evaluate whether J.W.K.'s appeal is moot.
      ¶13       The       record   is     undisputed           as     to   several         critical
facts.      First, J.W.K. is no longer subject to the August 2016
recommitment order              forming    the       basis      for    this    appeal.            That
order lapsed when the court entered a new commitment order on




                                                 7
                                                                                  No.      2017AP1574



July 21 2017.5         Second, J.W.K. does not allege any defects in the
July 2017 recommitment order.                     This makes J.W.K.'s challenge to
the 2016 commitment order moot.
        ¶14    An appeal of an expired commitment order is moot.                                    See

Winnebago       Cty.    v.    Christopher             S.,     2016    WI   1,     ¶¶30-31,          366
Wis. 2d 1, 878 N.W.2d 109 ("In Christopher's case, the issues
are moot because he is no longer subject to the orders being
appealed.").6          Reversing J.W.K.'s expired 2016 order "will have
no   practical       effect       on       the   underlying          controversy,"           see    PRN
Assocs.       LLC,   317     Wis. 2d 656,             ¶25,    because      he    is     no       longer
subject to the 2016 order.
      ¶15      J.W.K.       acknowledges          the        apparent      lack       of     a     live

controversy, but he argues this case is not moot, and urges the
court     to   address       his       sufficiency           argument.          He    hinges        his
argument       on    what    he    construes           to     be     different        evidentiary
standards           governing          initial          commitment          orders               versus
recommitment orders.               J.W.K. contends a reversal of the August
2016 recommitment order would necessarily invalidate all later
extensions,          creating          a     domino         effect     voiding          subsequent
recommitment orders.               Citing State ex rel. Serocki v. Circuit

      5J.W.K. is no longer subject to the July 21, 2017
commitment order; it was in effect for only twelve months and
expired in July 2018.
      6In Winnebago Cty. v. Christopher S., 2016 WI 1, 366
Wis. 2d 1, 878 N.W.2d 109, we nevertheless exercised our
discretion to address the issues raised (despite their mootness)
because they were "of great public importance" and "likely to
evade appellate review." Id., ¶32.


                                                  8
                                                                         No.       2017AP1574



Court for Clark Cty., 163 Wis. 2d 152, 471 N.W.2d 49 (1991),

J.W.K. maintains a recommitment order is merely a continuation
of    the    original commitment        and creates         a   chain     linking each
prior commitment order to any extension that follows it.                               Under
J.W.K.'s theory, reversing the August 2016 recommitment order
nullifies      any   subsequent       commitment     order,       thereby      requiring
reversal of the July 2017 order and any succeeding recommitment
order.       J.W.K. contends reversal of the August 2016 order would
create a gap between the original commitment in February 2016
and    the    July   2017    recommitment          order,       thereby      making      the
commitment orders no longer consecutive.                         J.W.K. argues that
this break in the chain means the State must start over with an

original      commitment    instead     of    petitioning        for    an     extension.
J.W.K. describes the original commitment procedures and burden
of proof as "more onerous" than those required to extend the
commitment.      J.W.K. argues that reversal of the 2016 order would
mean    the    circuit   court    lacked      competency        to     issue    the     2017
extension order.         J.W.K. also invokes due process, contending
that if the 2016 order falls, his commitment under the 2017
order deprived him of his liberty without the requisite showing
that he was mentally ill and dangerous.                    The concurrence/dissent
echoes       J.W.K.'s    arguments,       maintaining           that     the       original
commitment and any extensions of that commitment "create[] a
chain linking each prior order to any extension that follows."

Concurrence/dissent, ¶35.         We disagree.
       ¶16    "[C]ommitment       for        any     purpose           constitutes         a
significant      deprivation     of    liberty      that    requires         due    process
                                          9
                                                                            No.     2017AP1574



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

(quoted source omitted). The County comports with due process
when it "confine[s] a mentally ill person if it shows 'by clear
and convincing evidence that the individual is mentally ill and
dangerous.'"            Foucha      v.     Louisiana,       504    U.S. 71,       80   (1992)
(quoting     Jones,      463     U.S. at        362).       The    commitment,      however,
cannot continue after the constitutional basis for it ceases to
exist; the findings of mental illness and dangerousness must be
current,     not retrospective.                  See Foucha, 504 U.S.             at   77-78.
While     the       Supreme    Court           determined    that     the    Constitution
requires     a      showing    of    dangerousness,          and    not    mental      illness
alone,    it     "has    declined         to    prescribe     'strict      boundaries     for

legislative determinations of what degree of dangerousness is
necessary for involuntary commitment.'"                       See State v. Dennis H.,
2002 WI 104, ¶13, 255 Wis. 2d 359, 647 N.W.2d 851 (quoting State
v. Post, 197 Wis. 2d 279, 312, 541 N.W.2d 115 (1995)).
       ¶17     To     initiate           commitment     proceedings         involving       a
mentally ill individual under Wis. Stat. § 51.20, the County
must file a petition alleging the individual is (1) mentally ill
and a proper subject for treatment, and (2) "[t]he individual is
dangerous."          § 51.20(1)(a)1-2; see also J.W.J., 375 Wis. 2d 542,
¶18.     The statute contains five standards by which the County
may show the individual is dangerous.                       § 51.20(1)(a)2.a-e.          Each
requires       the    County        to    identify      recent      acts    or    omissions
demonstrating that the individual is a danger to himself or to
others.      See id.      During the final hearing, the County bears the
burden of proving the allegations in the petition by clear and
                                                 10
                                                                            No.        2017AP1574



convincing evidence.               § 51.20(13)(e); J.W.J., 375 Wis. 2d 542,

¶19.       If the grounds in the petition are proven, then the court
"shall" order commitment.                 § 51.20(13)(a)3; see also M.J. v.
Milwaukee Cty. Combined Cmty. Servs. Bd., 122 Wis. 2d 525, 529-
30,    362    N.W.2d 190         (Ct.   App.   1984).         The    initial          period    of
commitment cannot exceed six months.                   § 51.20(13)(g)1.
       ¶18        Wisconsin Stat. § 51.20 allows the initial commitment
order to be extended for "a period not to exceed one year."
§ 51.20(13)(g)1, (13)(g)3.

       Upon application for extension of a commitment by the
       department or the county department having custody of
       the subject, the court shall proceed under subs. (10)
       to (13).[7]     If the court determines that the
       individual is a proper subject for commitment as
       prescribed   in  sub.  (1)(a)1.   and  evidences  the
       conditions under sub. (1)(a)2. or (am) . . . it shall
       order judgment to that effect and continue the
       commitment[.]
§ 51.20(13)(g)3           (emphasis     added).        An     extension      requires          the
County       to    prove    the    same   elements       by    clear       and    convincing
evidence:           (1)    the    individual    is     mentally      ill    and        a   proper
subject for treatment, and (2) the individual is dangerous.                                    See
Wis.       Stat.      § 51.20(1)(a),           (am);     see        also     J.W.J.,           375
Wis. 2d 542,         ¶20    ("Upon      each    petition       to    extend       a    term     of
commitment, a county must establish the same elements with the



       7
       Wisconsin Stat. § 51.20(10) details the requirements for
hearings, subsection (11) addresses jury trials, subsection (12)
delineates an exception to the requirement of open hearings, and
subsection (13) deals with the disposition of the petition for
involuntary commitment. § 51.20(10)-(13).


                                               11
                                                                    No.   2017AP1574



same quantum of proof.").            However, in addition to the five
standards for showing dangerousness by recent acts or omissions
under   § 51.20(1)(a)2.a-e,     the     County     may     prove    dangerousness
under § 51.20(1)(am).
      ¶19   Because   an individual's         behavior might change           while
receiving     treatment,    Wis.     Stat.       § 51.20(1)(am)       provides    a
different avenue for proving dangerousness if the individual has
been the subject of treatment for mental illness immediately
prior to commencement of the extension proceedings:

      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[.]
§ 51.20(1)(am) (emphasis added).             Under this provision, if the
individual who is the subject of extension proceedings is under
commitment    "immediately     prior"    to      the    extension    proceedings,
then 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."                   § 51.20(1)(am).
This paragraph recognizes that an individual receiving treatment
may   not   have   exhibited   any     recent      overt    acts    or    omissions

                                       12
                                                                       No.    2017AP1574



demonstrating           dangerousness       because   the   treatment       ameliorated
such behavior, but if treatment were withdrawn, there may be a
substantial likelihood such behavior would recur.                       In this way,
paragraph      (am)      functions     as    an   alternative   evidentiary        path,
reflecting          a    change       in    circumstances      occasioned        by     an
individual's commitment and treatment.                      However, dangerousness
remains an element to be proven to support both the initial
commitment and any extension.
       ¶20    After the initial commitment period, which may last no
longer than six months, "all subsequent consecutive orders of
commitment of the individual may be for a period not to exceed
one year."          Wis. Stat. § 51.20(13)(g)1.             The circuit court must

hold a hearing on the petition for extension before the previous
order expires or it loses competency to extend the commitment.
See G.O.T. v. Rock Cty., 151 Wis. 2d 629, 633, 445 N.W.2d 697

(Ct.         App.        1989)        (explaining       that        "[a]n        initial
commitment . . . expires at the end of six months and cannot be
extended      beyond       that   period      unless    a    statute    permits       its
extension," and "[f]or that reason, the trial court must hold
the extension hearing before the initial commitment expires");
Wis.    Stat.       § 51.20(13)(g)1,          3   (allowing     for    extension        of
consecutive orders of commitment); see also City of Eau Claire
v. Booth, 2016 WI 65, ¶21, 370 Wis. 2d 595, 882 N.W.2d 738 ("a
circuit      court       may   lose    competency      to   enter     judgment     in    a
particular case if statutory requirements are not met").
       ¶21    J.W.K.'s domino theory that each extension depends on
the validity of previous commitment orders is not supported by
                                             13
                                                                         No.   2017AP1574



the   text    of     the     statute.       First,     reversing   the    August    2016
recommitment order does not retroactively deprive the circuit
court that issued a subsequent commitment order of competency.
The statute permits the extension of an individual's commitment
for   up    to   one    year    at    a    time,   and   contemplates      consecutive
orders of commitment.             See Wis. Stat. § 51.20(13)(g)1.               As long

as the extension is made prior to the expiration of the previous
commitment order, the circuit court may order the extension if
the County proves its case under the statutory criteria.8                            See
§ 51.20(13)(g)1, 3; G.O.T., 151 Wis. 2d at 633.                       Each order must
independently be based upon current, dual findings of mental
illness and dangerousness; accordingly, the sufficiency of the

evidence supporting prior orders has no impact on any subsequent
order.
      ¶22     While J.W.K. correctly notes the circuit court lacks
competency to extend a commitment order once the previous order
expires, the August 2016 order remained in effect at the time
J.W.K.'s commitment was extended in July 2017.                     Accordingly, the
circuit      court     had    competency      to   extend   the    commitment.        An
appellate        court's      later       conclusion     that   the      evidence    was

      8The concurrence/dissent concludes that a later judicial
determination of insufficient evidence to support the August
2016 order renders that order retroactively invalid, resulting
in the expiration of the original commitment before any valid
extension.          Concurrence/dissent,    ¶¶34,36.         The
concurrence/dissent misunderstands the text of Chapter 51. When
the commitment was extended in July 2017, the August 2016 order
remained in place, and as a factual matter, the orders were
therefore consecutive.   Accordingly, the circuit court retained
competency to extend J.W.K.'s commitment in 2017.

                                             14
                                                                              No.      2017AP1574



insufficient to support the August 2016 extension order would
not retroactively change the fact that at the time the circuit
court entered the extension order in July 2017, the prior order
had        not    expired;        therefore,         the    circuit       court        retained
competency to enter the unchallenged July 2017 order.
       ¶23       Second, J.W.K. fails to identify any provision in Wis.
Stat.        § 51.20        making       the    validity         of     an     unchallenged
recommitment order vulnerable to the invalidation on appeal of
the        previous         recommitment           order.             Contrary         to        the
concurrence/dissent's insistence that "[t]he statutory language
supports         [the]      premise"       that      "an     extension        order         is     a
continuation          of    the   original      commitment       and     creates       a     chain

linking each prior order to any extension that follows,"9 no such
language appears in the statute, and the availability of the
alternate         evidentiary           standard     in     paragraph        (am)      requires
nothing more than "the individual ha[ving] 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[.]"           § 51.20(1)(am).          The statute says nothing about the
validity         of   the   preceding       order     of    commitment       or     protective
placement         and      does   not     condition        the   availability           of       the
alternate means of establishing dangerousness on the legitimacy
of the prior order for treatment.                     This makes sense, because the
alternate         means     for   establishing         dangerousness         is     predicated

       9
           Concurrence/dissent, ¶35.

                                                15
                                                                        No.        2017AP1574



upon the fact that treatment may have had the desired effect of
ending   the    dangerous    behaviors        that    led   to    the    individual's
original commitment in the first place.                 "Because of the therapy
received, evidence of recent action exhibiting 'dangerousness'
is   often     nonexistent,"      and   "the     emphasis        [during       extension
proceedings]     is   on   the    attendant     consequence        to    the        patient
should treatment be discontinued."                   M.J., 122 Wis. 2d at 531.

Despite the absence of recent acts demonstrating dangerousness,
an individual may nevertheless pose a danger to himself or to
others based on a substantial likelihood that he would exhibit
those behaviors if treatment were withdrawn.                        Paragraph (am)
"allow[s] extension of a commitment when the patient's condition

has not improved enough to warrant discharge."                          Serocki, 163
Wis. 2d at 160 (quoted source omitted).
     ¶24     Each extension hearing requires the County to prove
the same elements with the same quantum of proof required for
the initial commitment.             See Wis. Stat. § 51.20(13)(e), (g)3
("The petitioner has the burden of proving all required facts by
clear and convincing evidence.").              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."          § 51.20(1)(a)2              and
(13)(g)3     (emphasis     added).      The    alternate     avenue           of    showing
                                         16
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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.
       ¶25    Accordingly, even if we assume the insufficiency of
the County's proffered evidence to support its petition for an
extension of J.W.K.'s commitment in August 2016, J.W.K. received
due    process     during     the     July    2017   recommitment       proceedings
because the County was required to establish the same elements
required for any commitment or recommitment:                        J.W.K.'s mental
illness and dangerousness.             J.W.K. does not suggest the County

failed to carry its burden of proof during the 2017 proceeding;
therefore, J.W.K.'s due process rights were fully protected.10
       ¶26    We reject J.W.K.'s and the concurrence/dissent's claim
that   Serocki supports        J.W.K.'s domino        theory.         The    issue    in

Serocki was whether an individual being committed timely filed a
request      for   substitution     prior     to   "any   preliminary        contested
matters."          Serocki,     163     Wis. 2d at        156-57.           Because   a
recommitment hearing is not "an entirely new proceeding" the
"circuit court continues to receive evidence in the same case"

       10
       Contrary to the concurrence/dissent's characterization of
our due process analysis as "pay[ing] lip service" to
constitutional protections afforded the mentally ill, we explain
that because subsequent extension proceedings require the dual
showings of mental illness and current dangerousness, the
proceedings in this case protected J.W.K.'s due process rights.
The concurrence/dissent misreads the applicable statutes (and
apparently this opinion) in concluding otherwise.

                                         17
                                                                                 No.     2017AP1574



and may rely on "the individual's present condition and past
response     to        treatment."         Id.       at    159-60.          We        concluded    a

recommitment           hearing   was       "a    continuation              of    the     original
commitment proceeding and previous recommitment hearings" in the
context of the substitution request under Wis. Stat. § 801.58(1)
(1989-90).        Serocki, 163 Wis. 2d at 156, 160.                         This conclusion,
however, was driven by the language of § 801.58(1) (1989-90) and
limited      to     "the      context      of    a        request     for        substitution."
Serocki, 163 Wis. 2d at 160.                     Because a substitution request
must be made prior to the circuit court hearing any preliminary
contested matters, as a procedural matter the individual subject
to commitment proceedings must make his substitution request in

the context of the original commitment proceedings, not later.
       ¶27   However, the           fact that         recommitment proceedings                  are
procedurally part of the original commitment action does not
mean    that       the     requisite       findings            of    mental       illness       and
dangerousness           necessary     to     support           a    recommitment          may     be
borrowed     from the original             proceeding.               To    the    contrary,        in
Serocki, we explicitly acknowledged that "the circuit court must
make a new determination of the individual's suitability for
commitment        at    the   recommitment           hearing."            Id.    at    159.       The
"evidence         presented      at     each         recommitment          hearing        may      be
different      from      evidence     presented           at   the    original          commitment
proceeding or a previous recommitment hearing."                                  Id.     We never
stated or implied that the validity of each recommitment order
depended on the validity of every commitment order preceding it.


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      ¶28       Because     a    decision     invalidating           the    August    2016
recommitment order has no impact on subsequent extensions, each
of which independently requires the County to meet the statutory
burden of proof, J.W.K.'s argument that insufficient evidence
supported the August 2016 order is moot.11
      ¶29       J.W.K. argues that concluding his case is moot may
deprive     him    of     meaningful      appellate    review        because     appellate
proceedings        in     Chapter    51     commitments       are    rarely      completed
before      a    subsequent       recommitment        order     is       entered.      The
concurrence/dissent             similarly    laments     the     "lack      of   remedy,"
which it considers "especially troubling in light of the fact
that an extension order is valid for no more than one year, and

therefore, by the time an appeal is heard, there is likely to be
a subsequent extension order in effect."                        Concurrence/dissent,
¶37 (footnote omitted).              That a recommitment order will likely
expire before appellate proceedings conclude does not transform
a moot issue into a live controversy.                  Rather, such concerns may
be addressed under the well-established exceptions to dismissal

for   mootness,         particularly,       issues    capable       of   repetition    yet

      11
       Our holding that J.W.K.'s sufficiency challenge is moot
is limited to situations where, as here, no collateral
implications of the commitment order are raised. J.W.K. points
out there may be "a variety of reasons other issues in chapter
51 cases are not moot even though a subsequent extension order
has been entered or the order expired," including "the
implications of a firearms ban when initially committed,
potential civil claims related to an illegal commitment," and
any attempt by the County to recover its cost of care. J.W.K.
does not argue any of these collateral circumstances; therefore,
we do not address them.


                                             19
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evading review.             In G.S. v. State, we explained the exceptions

to dismissal for mootness include situations involving:                               (1)
"issues      []        of      great    public           importance;"         (2)    "the
constitutionality of a statute;" (3) issues that arise so often
"a definitive decision is essential to guide the trial courts;"
(4) "issue[s] . . . likely to arise again and [that] should be
resolved by the court to avoid uncertainty;" or (5) an issue
"capable and likely of repetition and yet evades review because
the appellate process usually cannot be completed and frequently
cannot even be undertaken within a time that would result in a
practical effect upon the parties."                      G.S., 118 Wis. 2d at 805
(emphasis added).

       ¶30   J.W.K. makes no argument that any of the exceptions to
dismissal for mootness apply, and his sufficiency challenge does
not    appear     to    fit    into    any    of       the    exceptions.       J.W.K.'s
sufficiency challenge is fact-specific. While it is undoubtedly
extremely important to J.W.K., the issue is not of great public
importance; the sufficiency of the evidence will be different in
each    case.           J.W.K.    raises          no    arguments    concerning       the
constitutionality of Wis. Stat. § 51.20.                         Additionally, we do
not perceive a lack of definitive guidance on the issue J.W.K.
raises, or uncertainty in the lower courts that warrants our
intervention.          Finally, this case is not "likely of repetition."
See G.S., 118 Wis. 2d at 805.                The "'capable of repetition, yet
evading review' doctrine" is limited to situations involving "a
reasonable expectation that the same complaining party would be
subjected to the same action again."                         State ex rel. Clarke v.
                                             20
                                                               No.     2017AP1574



Carballo, 83 Wis. 2d 349, 357, 265 N.W.2d 285 (1978) (quoting

Weinstein    v.   Bradford,     423    U.S. 147,      149   (1975)    (emphasis
added)).     This   is   not    the   case   for   J.W.K.     He     argues   the
evidence was insufficient during a particular hearing; he raises
no issues concerning the subsequent application of § 51.20 to
him under later recommitment orders.
                               III.   CONCLUSION
     ¶31    We agree with the court of appeals and hold J.W.K.'s
sufficiency of the evidence argument is moot because J.W.K. is
no longer subject to the recommitment order he is appealing.
Accordingly, we affirm the court of appeals' decision dismissing
J.W.K.'s appeal as moot.

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




                                       21
                                                                           No.    2017AP1574.rfd




      ¶32      REBECCA     FRANK        DALLET,         J.     (concurring             in    part,
dissenting       in   part).          The       majority       opinion      concludes          that
because     J.W.K.       received         due    process       during       the    July        2017
hearing,    the validity of               the August          2016 extension            order    is
irrelevant and J.W.K.'s challenge to that order is moot.1                                         I
respectfully disagree.                I conclude that the sufficiency of the
evidence    presented         at    J.W.K.'s         August    2016    extension            hearing
determines the validity of the August 2016 extension order and

necessarily       also    determines            the    validity       of    any     subsequent
extension orders.          Thus, although J.W.K. is no longer subject to
the   order     being     appealed,         the       appeal    from       the    August       2016
extension       order    is     not    moot.           Accordingly,         I     examine       the
evidence    presented         at    the     August      2016    extension         hearing       and
conclude       that      the       circuit           court's     finding          of        current
dangerousness was not erroneous.
      ¶33      In order to confine someone who is mentally ill, the

County    must    show     by      clear    and       convincing       evidence         that    the
person    is    currently       mentally         ill    and    dangerous.              Foucha    v.

Louisiana, 504 U.S. 71, 80 (1992).                        There are two evidentiary
paths to prove dangerousness pursuant to Wis. Stat. § 51.20.


      1The majority uses the term "recommitment," however, I use
the language included in the statutory provision which governs
commitment beyond the initial commitment order.     See majority
op., ¶1 n.1.       That section refers to the filing of an
"application for extension of a commitment" and requires proof
that the individual "is in need of continued commitment" in
order for the circuit court to enter judgment to "continue the
commitment." See Wis. Stat. § 51.20(13)(g)3.


                                                 1
                                                                                  No.    2017AP1574.rfd


The first path, applicable to initial commitment proceedings,
requires       the    County          to    identify           recent       acts        or     omissions
demonstrating         the        individual         is    a     danger       to     themselves          or
others, pursuant to § 51.20(1)(a)2.a.-e.                                In what the majority
opinion refers to as the "alternative evidentiary path," the
County may prove current dangerousness by showing 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,"             pursuant        to

§ 51.20(1)(am).                  Majority         op.,         ¶19.          This            alternative
evidentiary path is only available 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 . . . under                  this             section."
§ 51.20(1)(am) (emphasis added).2                        The circuit court "must make a
new        determination           of       the      individual's             suitability             for
commitment" at each extension hearing and evidence presented at

each extension hearing "may be different from evidence presented
at the original commitment proceeding."                               State ex rel. Serocki
v.    Circuit    Court       for        Clark     Cty.,        163    Wis. 2d 152,             159,   471
N.W.2d 49 (1991).
       ¶34     As recognized by the majority, the circuit court lacks
competency       to    extend           a   commitment           order       once        the     initial
commitment order has expired.                     Majority op., ¶22.                    See G.O.T. v.


       2
      There are other paths in Wis. Stat. § 51.20(1)(am) that
the County could follow, but those paths are not applicable
here.


                                                    2
                                                                               No.    2017AP1574.rfd


Rock   Cty.,       151   Wis.        2d   629,     633,      445    N.W.2d      697     (Ct.       App.

1989)("[a]n initial commitment . . . expires at the end of six
months      and    cannot       be    extended         beyond      that       period        unless    a
statute permits its extension").                          If current dangerousness was
not established at the August 2016 extension hearing, the August
2016     extension        order       was       invalid.           As     such,       the    initial
commitment order would have expired prior to it being extended
and the circuit court would have lacked competency to enter any
subsequent extension orders.                     Contrary to the majority opinion,

even   if    dangerousness            were      established         during      the     July       2017
hearing,      this       does     not       cure       the   circuit          court's       lack     of
competency to issue an extension order in July 2017 or render
the two orders somehow permissibly "consecutive."                                    Majority op.,
¶21 n.8.
       ¶35    J.W.K. properly asserts that an extension order is a
continuation        of    the     original         commitment           and   creates        a    chain
linking each prior order to any extension that follows.                                             The

statutory         language      supports           this      premise.         See     Wis.        Stat.
§ 51.20(13)(g)3. (referring to the court order after the filing
of an "application for extension" as an order to "continue the
commitment" requiring proof that the individual "is in need of
continued      commitment");              see    also     § 51.20(1)(am)             (creating       an
alternative         path     to       prove        current         dangerousness             if     the
individual is subject to a commitment order "immediately prior"
to the extension hearing).                       Additionally, in Serocki, in the
context of a request for substitution, this court concluded that
the legislature intended for an individual's extension hearing

                                                   3
                                                                 No.    2017AP1574.rfd


to be "a continuation of the original commitment proceeding and
previous recommitment hearings."            Serocki, 163 Wis. 2d at 154.

      ¶36   If the requirements of Wis. Stat. § 51.20(1)(am) were
not met at the August 2016 extension hearing, J.W.K. would not
have been subject to a valid commitment order immediately prior
to the July 2017 hearing.             Once the chain of commitment was
broken,     the   County    would     be     required       to    prove         current
dangerousness as it did at the initial commitment hearing, by
establishing a factor set forth in § 51.20(1)(a)2.a.-e.                         If the

County did not do so, any subsequent extension orders would be
rendered invalid.3
      ¶37   The    importance    of     the       circuit    court           making   a
sufficient    finding      of   current       dangerousness        prior        to    an
extension of commitment cannot be overstated.                The United States
Supreme Court has emphasized that in order to confine a mentally
ill individual, due process requires the County to show by clear
and   convincing     evidence    that       the    individual          is     currently

mentally ill and dangerous.           Foucha, 504 U.S. at 80; see also
Jones v. United States, 463 U.S. 354, 362 (1983).                           Absent this
finding, any extension order will not only violate Wis. Stat.
§ 51.20, but also J.W.K.'s due process rights.                         Although the
majority pays lip service to the due process protection required


      3At the July 2017 hearing, the County followed the
alternative evidentiary path to prove current dangerousness
pursuant to Wis. Stat. § 51.20(1)(am). The parties did not
brief the issue of whether that testimony also established
current dangerousness pursuant to § 51.20(1)(a)2.a.-e. and
therefore I will not address it.


                                        4
                                                                    No.   2017AP1574.rfd


to deprive a mentally ill individual of their fundamental right
to liberty, it provides no consequence for a County's failure to
prove current dangerousness and the corresponding violation of
due process.          A lack of remedy is especially troubling in light
of the fact that an extension order is valid for no more than
one year,4 and therefore, by the time an appeal is heard, there
is   likely      to    be    a    subsequent       extension      order   in   effect.
According       to     the       majority,       the   County     can     violate    an
individual's due process rights without any practical effect.

See majority op., ¶14.             The majority ignores the possible remedy

for an unconstitutional deprivation of liberty that would have a
practical effect on any individual and would help to ensure the
protection of due process rights for the mentally ill:                         release
from confinement.
     ¶38       Because I find that J.W.K.'s appeal of the sufficiency
of his August 2016 extension order is not moot, I reach the
issue J.W.K. sought to raise on appeal:                         whether the County

proved    by    clear    and      convincing      evidence   at    the    August    2016
extension hearing that J.W.K. would still be a proper subject
for commitment if treatment were withdrawn.5                      This court defers
to the circuit court's factual findings unless they are clearly
erroneous.       See Phelps v. Physicians Ins. Co. of Wis., Inc.,
2009 WI 74, ¶34, 319 Wis. 2d 1, 768 N.W.2d 615.



     4   See Wis. Stat. § 51.20(13)(g)1.
     5 The circuit court extended J.W.K.'s commitment prior to
completion of briefing on appeal.


                                             5
                                                                    No.   2017AP1574.rfd


       ¶39   On    direct       examination,      Dr.    James       Scott     Persing
testified    that    he examined        J.W.K. and that, in               his opinion,
there was a substantial likelihood that J.W.K. would be a proper
subject for commitment if treatment were withdrawn, pursuant to
Wis. Stat. § 51.20(1)(am).               Had this been the extent of the
testimony to prove the dangerousness prong, J.W.K.'s argument
regarding the sufficiency of the evidence would be stronger.
However, the hearing continued and Dr. Persing was questioned on
cross-examination       regarding       the    basis    for   his    opinion.       Dr.

Persing responded that he based his opinion:                    "[o]n the history
of the overall struggles with chronic mental illness for many
years with variable levels of compliance with treatment, and
leading up to a point of variety of altercations, or need for
mental health commitment."               Dr. Persing further described how
assessment of J.W.K. was difficult because he had been isolative
and    was   not    participating        in     therapeutic     and       recreational
activities.

       ¶40   The circuit court found that based upon the testimony
of Dr. Persing and J.W.K., there was a substantial likelihood
that    J.W.K.     would    be    a    proper     subject     for     commitment     if
treatment were withdrawn.               While the testimony supporting Dr.
Persing's     opinion      as    to    J.W.K.'s    current      dangerousness       was
minimal,     I    nevertheless        conclude    that    the    findings      of   the
circuit court are not clearly erroneous and must be upheld.
       ¶41   In sum, I conclude that J.W.K.'s appeal of his August
2016 extension order is not moot and therefore I would reverse
the court of appeals' decision.                   Further, I reach the issue

                                           6
                                                                   No.    2017AP1574.rfd


regarding     the     sufficiency      of     the    evidence    presented       at     the
August 2016 extension hearing, which the majority opinion and
court   of    appeals        failed   to     address,   and     conclude       that     the
circuit      court's        finding   that    J.W.K.    was     dangerous       was     not
clearly erroneous.            Therefore, I concur in part and would affirm
the circuit court's August 2016 extension order.
     ¶42     For      the    foregoing      reasons,    I    concur      in    part     and
dissent in part.
     ¶43     I   am    authorized      to    state    that    Justices        SHIRLEY    S.

ABRAHAMSON and ANN WALSH BRADLEY join this concurrence/dissent.




                                             7
    No.   2017AP1574.rfd




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