COA affirms recommitment and concludes challenge to medication order is moot
Winnebago County v. E.R.B., 2025AP2522, 5/14/26, District IV (ineligible for publication); case activity
COA affirms the circuit court’s orders extending ERB’s commitment and authorizing his involuntary medication and treatment, concluding that there was sufficient evidence to sustain the commitment order, and that the medication order is moot, as it previously expired.
ERB, who was incarcerated at the Wisconsin Resource Center during this recommitment, was originally committed under the first, second and fifth standards, and involuntarily medicated, in early 2024. (¶2). The county pursued recommitment under the second and fifth standards in June 2024, and it was tried to a jury. (¶3). The county presented testimony from a worker at WRC, who testified that one day ERB banged on the inside of his locked cell door and said that he wanted to kill the worker while in a “boxing stance,” and the next day yelled at the worker through the closed cell door, calling him a “bitch” and saying “I’ll fucking kill you.” (¶4). The worker was concerned that ERB could attack or hurt him while escorting ERB through the institution. (¶5). A supervisor also testified that ERB threatened to assault residents and institution staff if he was moved to another unit. (¶6). The county also called a psychiatrist who opined that ERB suffered from schizophrenia. (¶7). The psychiatrist testified to some of the relevant legal standards, as well as the effects of the medication, and an incident in which he was concerned for his safety while meeting with ERB in 2023. (¶¶7-11).
The jury found ERB met the second and fifth standards, as modified by the recommitment standard, and the other requirements for recommitment. The circuit court entered a recommitment order and ordered involuntary medication and treatment. (¶12). ERB contends that the County failed to present sufficient evidence to prove the mental illness and dangerousness, and to support the involuntary medication order. (¶¶14-15). COA affirms under the second standard, not addressing the fifth.
As to mental illness, COA agrees the psychiatrist’s testimony provided “thin” evidence because it provided little detail to support the conclusion that ERB has schizophrenia and the facts to support the conclusion are open to interpretation. (¶18). However, as the dangerousness component was a jury question, COA must sustain the verdict if there is “any credible evidence” supporting it. Outagamie County v. Michael H., 2014 WI 127, ¶21, 359 Wis. 2d 272, 856 N.W.2d 603 (2014). COA therefore concludes that it must sustain the jury’s verdict. (¶19).
Similarly, as to dangerousness, COA concludes that ERB’s threats to kill an institution worker, to assault another resident, and to assault institution staff was sufficient for the jury to conclude that E.R.B. demonstrated a “substantial probability of physical harm to other individuals” and staff had “reasonable fear of violent behavior and serious physical harm” under the second standard. (¶21). The court dismisses ERB’s recentness argument because of the recommitment standard, WIS. STAT. § 51.20(1)(am), and because the threats occurred at the end of 2023, just before ERB’s initial commitment and less than a year before this recommitment proceeding. (¶¶22-24).
Finally, COA concludes the medication order is moot because it expired prior to the conclusion of the appeal and “its resolution will have no practical effect on the underlying controversy.” Portage County v. J.W.K., 2019 WI 54, ¶11, 386 Wis. 2d 672, 927 N.W.2d 509. ERB argues that the medication order is not moot under Outagamie County v. L.X.D.-O., 2023 WI App 17, ¶14, 407 Wis. 2d 441, 991 N.W.2d 518. COA rejects this argument because it assumes that the underlying commitment order is invalid and it concludes that the order is valid. (¶25).