COA rejects challenges to sufficiency of evidence for 51 extension, involuntary med order

Winnebago County v. T.M.G., 2023AP681, 1/24/24, District II (one-judge decision; ineligible for publication); case activity

Despite T.M.G.’s challenges, COA affirms this extension and related medication order applying what it believes to be well-settled precedent.

“Thomas” challenges an order extending his commitment finding him dangerous under § 51.20(1)(a)2.b.  (¶1). He argues that the County failed to present sufficient “evidence to support the trial court’s finding that Thomas presented a danger to others.” (¶10). Although there’s an interesting side dispute we would have loved to see play out here as to whether throwing feces at another satisfies the standard, the appeal ultimately focuses on evidence that Thomas mailed a “an envelope containing white powder to a federal courthouse.” (¶12). While Thomas argues that this behavior could not actually have posed a risk–as he believes the substance to have been harmless–COA holds that this argument fails to acknowledge the requisite standard. (¶13). Following SCOW’s decision in Marathon County v. D.K., COA points out that the statute merely requires “a threat to do serious physical harm” which makes it “more likely than not that the individual will cause physical harm to other individuals.” (¶12). It doesn’t matter, then, whether the white powder was harmless; all that matters is that the conduct could be taken as a “threat” and COA concludes that this was certainly threatening. (¶14).

This conclusion seems debatable. Even if it was a threat, it seems like the County still needs to prove it was “much more likely than not that Thomas will cause physical harm to others[…].” (¶13). If Thomas was incarcerated without access to an anthrax lab…and the powder was actually harmless…then how does this conduct meet the standard? If Thomas didn’t actually mail the powder, but sent a letter threatening to mail anthrax, would that be sufficient? If he mailed a cardboard tube and wrote “nuclear bomb” on it, what then? It seems like there’s a “true threat” type analysis lurking here that goes undiscussed.

Having failed to overturn the recommitment order, Thomas next argues that the medication order was not supported by sufficient evidence. (¶15). Applying Winnebago County v. Christopher S., COA rejects this challenge. (¶16). The examiner’s testimony “tracked” the statutory language and this is presumed to be sufficient. (Id.).

As COA concedes, this issue is currently presented to SCOW in D.E.W.  (¶16). However, it distinguishes that authority because the examiner’s testimony here was more specific than the controverted testimony in that case. (Id.).

Finally, COA addresses the County’s mootness argument. (¶17). Although COA appears to acknowledge that SCOW’s decision in Sauk County v. S.A.M. make this a difficult argument for the County, it nevertheless sees fit to mention that the alleged collateral consequences discussed in S.A.M. are often “illusory;” it also faults Thomas for not affirmatively arguing mootness without actually accepting the County’s mootness arguments. (¶¶17-18).