Winnebago County v. E. R. B.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 14, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2025AP2117 Cir. Ct. No. 2025ME113

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE MENTAL COMMITMENT OF E.R.B.:

WINNEBAGO COUNTY,

PETITIONER-RESPONDENT,

V.

E.R.B.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Dane County:
MICHAEL GIBBS, Judge. Orders affirmed.

¶1 NASHOLD, J.1 E.R.B. appeals orders extending his commitment
under WIS. STAT. ch. 51 and authorizing his involuntary medication and treatment.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2025AP2117

He argues that there was insufficient evidence to support either the commitment or
the medication order. I conclude that there was sufficient evidence to sustain the
commitment order, and that the medication order, having expired, is moot.

BACKGROUND

¶2 During the pertinent time period, E.R.B. was incarcerated at the
Wisconsin Resource Center. The circuit court ordered his initial commitment in
January 2024, concluding that he was dangerous to himself and to others under the
first and second dangerousness standards, respectively, and also that he met the
fifth standard of dangerousness (incompetency to refuse medication and a
substantial probability of severe harm). See WIS. STAT. § 51.20(1)(a)2.a., b., e.
He was also placed under an order for involuntary medication and treatment.

¶3 In June 2024, Winnebago County filed a petition to extend E.R.B.’s
commitment, which included a request for involuntary medication. The petition
was tried to a jury. This time the County sought to prove E.R.B. dangerous under
two standards: the second and the fifth. See WIS. STAT. § 51.20(1)(a)2.b., e. As to
both standards, the County specifically alleged, under § 51.20(1)(am), that E.R.B.
would become a proper subject for commitment if treatment were withdrawn.
Because I affirm as to the second standard, I do not decide whether the evidence
was sufficient under the fifth standard, and this opinion will summarize only the
evidence relevant to E.R.B.’s danger to others.

¶4 At the trial, a worker at the institution where E.R.B. was confined
testified that in December 2023, he was working near E.R.B.’s cell when E.R.B.,
inside the locked cell, began to bang on the door and call the worker, others at the
institution, and the then-serving President of the United States “pedophiles.” The
worker testified that E.R.B. said that he wanted to kill the worker and that E.R.B.

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No. 2025AP2117

was in a “boxing stance” while pounding on the door. The same worker testified
that the following day, E.R.B. once again yelled at the worker through the closed
cell door, calling him a “bitch” and saying “I’ll fucking kill you.”

¶5 The worker testified that one of his responsibilities is to remove
residents from their cells and escort them to other parts of the institution, and that
he was concerned that E.R.B. could attack or hurt him while he was performing
this duty, even though the threats were uttered when E.R.B. was behind a locked
door. The worker also testified that E.R.B. apologized a few days after these
incidents but that the worker still did not feel safe.

¶6 A supervisor at the institution testified that in October 2023, he and
another supervisor had discussed with E.R.B. the possibility of E.R.B. moving to a
different unit within the institution. The reason for the contemplated move was
that E.R.B. “was very possessive of some of the older gentlemen” in the unit
where he then resided, and was “having some of the lower-functioning individuals
on the unit only refer to him as ‘the chosen one.’” The supervisor testified that
E.R.B. said that if he were moved, he would assault another resident and would
assault institution staff who responded to his assault on the resident.

¶7 The County also called a psychiatrist who had met with E.R.B.
several times, reviewed his treatment record, and prepared a report on his
condition. Asked if E.R.B. has a mental illness, the psychiatrist replied, “I think
he suffers from schizophrenia.” The psychiatrist outlined symptoms of
schizophrenia, including delusions, fluctuating mood, “a high degree of
irritability,” and poor impulse control. The psychiatrist opined that E.R.B.’s
schizophrenia grossly impaired his judgment, behavior, and capacity to recognize
reality, and that it interfered with his ability to meet the ordinary demands of life.

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¶8 Asked specifically about symptoms or delusions he had observed in
E.R.B., the psychiatrist described E.R.B.’s “inability to see that the [psychotropic]
medications are effective, have been effective, and that … there’s a … potential
for the benefit.” The psychiatrist also testified that E.R.B. has “delusions … or
preoccupation with this notion of having a liver lesion as well as kidney stones.”
The psychiatrist explained that while E.R.B. does have kidney stones, as well as a
“small cyst in the liver,” both had been medically evaluated and no surgery was
warranted. The psychiatrist also testified that since E.R.B. had been medicated, he
is still preoccupied with his liver, “but now that he’s on [medication], he tends to
listen to the recommendations” of his physicians as to how to manage the
condition, rather than demanding to be taken to the emergency room. The
psychiatrist also cited an incident from 2022: E.R.B. had been released from a
prior confinement, and after two months was again arrested; he then attempted
suicide while in jail.

¶9 The psychiatrist also testified that if E.R.B. were not medicated,
“he’s sure to decompensate.” He stated that E.R.B. has a “history of
decompensation of his mental status every time he’s off medications.” He said
that E.R.B. had “clearly expressed his intention to stop the medication without
giving me any good reasons to do so.”

¶10 The psychiatrist testified that he attempted to educate E.R.B. about
his mental illness and the treatments “[a]t every opportunity,” discussing “risks,
benefits, alternatives, advantages and disadvantages.” He added that at his most
recent meeting with E.R.B., E.R.B. “was noncommittal regarding the diagnosis
and more focused on not taking the medication” once the then-current medication
order expired. The psychiatrist testified that when he tried to convince E.R.B. that
this was not a good idea, E.R.B. “said, ‘well, I want a jury trial,’ and that was it.”

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No. 2025AP2117

¶11 When asked if there were any incidents that made him concerned for
his safety, the psychiatrist described an incident in the fall of 2023. During a
meeting with E.R.B., the psychiatrist told E.R.B. that he would not prescribe a
medication that E.R.B. requested, after which E.R.B. “promptly got up and puffed
his chest out and … made a step towards me.” The psychiatrist testified that he
had only observed E.R.B. for “seven minutes prior to” this action, so he decided to
end the interview and ask E.R.B. to leave the room.

¶12 The jury found E.R.B. mentally ill, treatable, and dangerous under
both the second and fifth standards (as modified by the WIS. STAT. § 51.20(1)(am)
proviso that he would be a proper subject for commitment if treatment were
withdrawn). The circuit court accordingly ordered E.R.B.’s commitment
extended. The court also found that the psychiatrist had explained to E.R.B. the
advantages, disadvantages, and alternatives to accepting medical treatment, and
that E.R.B. was incapable of applying an understanding of these matters to his
mental illness. The court accordingly entered an order for involuntary medication.
E.R.B. appeals.

DISCUSSION

I. General principles and standards of review.

¶13 As with an initial commitment order, to secure an order
recommitting a person under WIS. STAT. ch. 51, a petitioner must demonstrate that
the person meets three criteria. First, the person must be mentally ill. WIS. STAT.
§ 51.20(1)(a)1. Second, the person’s condition must be treatable. § 51.20(1)(a)1.
Third, the person must be dangerous. § 51.20(1)(a)2.; Langlade County v.
D.J.W., 2020 WI 41, ¶31, 391 Wis. 2d 231, 942 N.W.2d 277.

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No. 2025AP2117

¶14 E.R.B. contends that the County failed to adduce sufficient evidence
to prove the first criterion (mental illness) and the third criterion (dangerousness).
Because these issues were tried to a jury, this court must affirm the verdict “‘if
there is any credible evidence, when viewed in a light most favorable to the
verdict, to support it.’” Outagamie County v. Michael H., 2014 WI 127, ¶21, 359
Wis. 2d 272, 856 N.W.2d 603 (quoted source omitted). This court must uphold a
jury verdict even though the evidence supporting it “‘[is] contradicted and the
contradictory evidence [is] stronger and more convincing.’” Id. (quoted source
omitted).

¶15 E.R.B. also argues that there was insufficient evidence to support the
order for involuntary medication and treatment. The decision whether to enter
such an order is committed to the circuit court, rather than a jury. WIS. STAT.
§ 51.61(1)(g)3. The standard of review for this decision is mixed; an appellate
court will not disturb the circuit court’s factual findings unless they are clearly
erroneous, but independently determines whether the facts as found satisfy the
statutory standard. Outagamie County v. Melanie L., 2013 WI 67, ¶¶38-39, 349
Wis. 2d 148, 833 N.W.2d 607.

II. There was sufficient evidence that E.R.B. is mentally ill.

¶16 E.R.B. first contends that the County did not adduce evidence
sufficient to sustain the jury’s verdict that he is mentally ill. The statutes provide a
definition of “mental illness” specific to involuntary commitments under WIS.
STAT. ch. 51: “a substantial disorder of thought, mood, perception, orientation, or
memory which grossly impairs judgment, behavior, capacity to recognize reality,
or ability to meet the ordinary demands of life, [excluding] alcoholism.” WIS.
STAT. § 51.01(13)(b).

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No. 2025AP2117

¶17 E.R.B.’s argument on this element focuses on the testimony of the
psychiatrist. As noted, when asked whether E.R.B. has a mental illness, the
psychiatrist responded, “I think he suffers from schizophrenia,” an answer E.R.B.
describes as “conclusory.” Further, E.R.B. points out that when asked what
symptoms the psychiatrist had observed in E.R.B. to support this diagnosis, the
psychiatrist did not give an answer specific to E.R.B., but instead gave a list of
symptoms that are associated with schizophrenia generally. The psychiatrist also
testified that E.R.B., when unmedicated, has a “preoccupation” with his benign
liver cyst and his kidney stones, demanding to be taken to the emergency room,
but that when medicated, E.R.B. is willing to accept the advice of his medical
doctors. The psychiatrist also regarded E.R.B.’s failure to see the benefit of his
psychotropic medications, along with his 2022 suicide attempt, as signs of
schizophrenia. Further, the psychiatrist noted E.R.B.’s holding himself out as a
“guru” to other residents, and stated that “religious preoccupation is one of the
cardinal signs of schizophrenia. So religious beliefs versus, you know, the
religiously-themed psychosis,” the latter of which the psychiatrist attributed to
E.R.B.

¶18 E.R.B. describes all of the above as “thin” evidence that he is
mentally ill. I agree in two senses: first, the psychiatrist provided little detail to
support his conclusion that E.R.B. has schizophrenia, and second, the facts that the
psychiatrist did provide are open to many possible interpretations. Nevertheless,
applying the standard of review—on which the parties agree—I must sustain the
jury’s verdict on the question of E.R.B.’s mental illness. That verdict must stand
if there is “any credible evidence” supporting it. Michael H., 359 Wis. 2d 272,
¶21. Further, “if the evidence gives rise to more than one reasonable inference,

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No. 2025AP2117

[courts] accept the particular inference reached by the jury.” Id. (emphasis
omitted).

¶19 I conclude that the psychiatrist’s testimony constitutes credible
evidence from which a factfinder could reasonably infer that E.R.B. has
schizophrenia. E.R.B. is correct that “conclusory opinions parroting the statutory
language” would be insufficient to meet the County’s burden. Winnebago County
v. S.H., 2020 WI App 46, ¶17, 393 Wis. 2d 511, 947 N.W.2d 761. But the
psychiatrist’s testimony here, while admittedly not overwhelming in its force, did
supply both facts about E.R.B. and a rationale connecting those facts to his
diagnosis of schizophrenia. I must therefore uphold the jury’s decision on this
issue.

III. There was sufficient evidence that E.R.B. is
dangerous under the second standard.

¶20 The statutory definition of the second standard, dangerousness to
others, requires a petitioner to show that the subject “[e]vidences a substantial
probability of physical harm to other individuals 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.” WIS.
STAT. § 51.20(1)(a)2.b. Because the proceedings here were for the extension of a
commitment, the usual requirement of “recent” acts may be replaced “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).

¶21 The trial evidence here included testimony and exhibits about
E.R.B.’s threats to kill an institution worker, to assault another resident, and to

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assault institution staff who responded to the threatened assault of the resident.
E.R.B. argues that the threat to kill the worker was not sufficiently plausible to
instill reasonable fear because E.R.B. was behind a locked door when he made the
threat, and that the threat to assault various people if he were moved to a different
unit was conditioned on that move actually occurring. I conclude that the
evidence was sufficient for the jury to conclude that E.R.B. demonstrated a
“substantial probability of physical harm to other individuals.” WIS. STAT.
§ 51.20(1)(a)2.b. The worker E.R.B. threatened to kill testified that, although
E.R.B. was behind a locked door when he made the threat, the worker’s duties
included escorting E.R.B. within the institution, and that he feared that E.R.B.
might attack him during this time. As to the other threats, while it may have been
possible that E.R.B. would not be moved, this possibility did not foreclose the
conclusion that his threats to assault residents and staff instilled “reasonable fear
of violent behavior and serious physical harm.” § 51.20(1)(a)2.b.

¶22 E.R.B. argues that these threats were not “recent” threats under WIS.
STAT. § 51.20(1)(a)2.b. He further argues that the § 51.20(1)(am) standard—
which allows for a dangerousness finding where the person would be a proper
subject for commitment if treatment were withdrawn—is not met here.

¶23 Regarding E.R.B.’s first argument, as noted, the County need not
show “recent” threats. See WIS. STAT. § 51.20(1)(am). As to E.R.B.’s second
point, I conclude that sufficient evidence supports the jury’s finding that E.R.B.
would be a proper subject for commitment if treatment were withdrawn. The
threats to kill and threats to assault all came toward the end of 2023, just before
E.R.B. was initially committed. Related to those initial commitment proceedings,
E.R.B. became subject to involuntary medication. It is true, as E.R.B. argues, that
the County presented no evidence of similar behavior in the six months preceding

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the extension hearing on appeal. But it is also true that the recommitment standard
contemplates that a lack of recent dangerous behavior may be attributable to
treatment, and thus provides that dangerousness can be shown by evidence that the
withdrawal of treatment would result in further dangerous behavior. S.H., 393
Wis. 2d 511, ¶9.

¶24 E.R.B. argues that his is a case in which his threats were “old
enough, weak enough, or otherwise insufficient to support clear and convincing
evidence under the substantial likelihood of the dangerousness test.” Id., ¶13 n.6.
I disagree. Less than a year passed between the threats and the recommitment
hearing. There was testimony that E.R.B. had stated that he would not take
psychotropic medication if he were not committed. And there was expert
testimony that the medication improved E.R.B.’s condition, and that if he did not
take the medication, he would decompensate, in ways that had led to previous
dangerous behavior. The logical connections between the threats, the effect of the
medication, E.R.P.’s stated intention to discontinue the medication, and his history
when unmedicated are all robust. This is not to say that the passage of time did
not weaken the inference of dangerousness, or that the passage of more time
would not weaken that inference further. But I conclude that the jury’s verdict
that E.R.P. would become a proper subject for commitment if treatment were
withdrawn was supported by some credible evidence, and thus that I must sustain
the jury’s verdict.2

2
As noted, because I conclude that the jury’s verdict must be upheld as to the second
standard, I do not address whether there was sufficient evidence supporting the jury’s verdict on
the fifth standard. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983)
(appellate court need not address every issue raised by the parties when one is dispositive).

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No. 2025AP2117

IV. The medication order is moot.

¶25 Both the commitment order and the medication order on appeal have
expired.3 It is undisputed that the appeal of the commitment order is not moot, for
the reasons given in Sauk County v. S.A.M., 2022 WI 46, ¶¶23-27, 402 Wis. 2d
379, 975 N.W.2d 162. However, the appeal of the medication order is moot, as
“‘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
(quoted source omitted). E.R.B. argues that the medication order is not moot, see
Outagamie County v. L.X.D.-O., 2023 WI App 17, ¶14, 407 Wis. 2d 441, 991
N.W.2d 518, but all of his arguments on this point assume that the underlying
commitment order is invalid. Having concluded that the underlying commitment
order is valid, I also conclude that there is no live controversy regarding the
medication order. E.R.B. does not argue that exceptions to the mootness doctrine
apply, so I do not address the medication order further.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

3
This court endeavors to decide appeals of WIS. STAT. ch. 51 commitments before the
commitments expire whenever possible. In this case, E.R.B.’s appellant’s brief notes that the
public defender was unable to appoint counsel for E.R.B. until nearly nine months of the one-year
commitment extension period had passed. Accordingly, briefing was not completed until after
the recommitment order had expired.

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