State v. Raytrell K. Fitzgerald , 387 Wis. 2d 384 ( 2019 )

2019 WI 69SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1296-CR & 2018AP1214-W
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Raytrell K. Fitzgerald,
Defendant-Appellant.
State of Wisconsin ex rel. Raytrell K.
Fitzgerald,
Petitioner-Petitioner,
v.
Circuit Court for Milwaukee County and the
Honorable Dennis R. Cimpl, presiding,
Respondents.
ON BYPASS FROM THE COURT OF APPEALS &
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: June 13, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 20, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Dennis R. Cimpl
JUSTICES:
CONCURRED: ROGGENSACK, C.J. concurs, joined by ZIEGLER, J.
(opinion filed).
DISSENTED:
NOT PARTICIPATING: ABRAHAMSON, J. did not participate.
ATTORNEYS:
For the defendant-appellant in 18AP1296-CR, and petitioner-
petitioner in 18AP1214-W, there were briefs filed by Colleen D.
Ball, assistant state public defender. There were oral arguments
by Colleen D. Ball.
For the plaintiff-respondent, there was a brief filed by
Maura FJ Whelan, assistant attorney general, with whom on the
brief is Brad D. Schimel, attorney general. There was an oral
argument by Maura FJ Whelan.
For the respondents, there was a brief filed by Abigail
C.S. Potts, assistant attorney general, with whom on the brief
if Brad D. Schimel, attorney general. There was an oral argument
by Abigail C.S. Potts
An amicus curiae brief was filed in 18AP1296-CR on behalf
of National Association for Criminal Defense Lawyers, Bazelon
Center for Mental Health Law, National Disability Rights
Network, and Disability Rights Wisconsin, by Jeffrey O. Davis,
James E. Goldschmidt, Zachary T. Eastburn, and Quarles & Brady
LLP, Milwaukee.
2
2019 WI 69NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1296-CR & 2018AP1214-W
(L.C. No. 2016CF4475)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUN 13, 2019
Raytrell K. Fitzgerald,
Sheila T. Reiff
Defendant-Appellant. Clerk of Supreme Court
State of Wisconsin ex rel. Raytrell K.
Fitzgerald,
Petitioner-Petitioner,
v.
Circuit Court for Milwaukee County and the
Honorable Dennis R. Cimpl, presiding,
Respondents.
APPEAL from an order of the Circuit Court for Milwaukee
County, Dennis R. Cimpl, Circuit Court Judge. Vacated; and
REVIEW of a decision of the Court of Appeals. Affirmed.
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No. 2018AP1296-CR & 2018AP1214-W
¶1 REBECCA GRASSL BRADLEY, J. These consolidated cases1
concern the standard under which a circuit court may order
involuntary medication to restore a defendant's competency to
proceed in a criminal case and the timing of the automatic stay
of such orders established in State v. Scott, 2018 WI 74, 382
Wis. 2d 476, 914 N.W.2d 141. The circuit court ordered Raytrell
K. Fitzgerald to be involuntarily medicated pursuant to Wis.
Stat. § 971.14 (2017-18)2 to restore his competency to stand
trial on a felony possession-of-a-firearm charge. After the
circuit court entered its order, this court released the Scott
decision, subjecting involuntary medication orders to an
automatic stay pending appeal. Following a hearing on the
impact of the Scott decision, the circuit court stayed its
involuntary medication order but announced its plan to lift the
stay in response to the State's motion. As the case proceeded
through the appellate courts, the circuit court never lifted the
1 Our decision resolves two cases, State v. Fitzgerald,
2018AP1296-CR and State ex rel. Fitzgerald v. Circuit Court for
Milwaukee Cty., 2018AP1214-W. We decide the merits of
2018AP1296-CR by vacating the circuit court's order. This part
of our decision addresses the constitutionality of Wis. Stat.
§ 971.14 and although the circuit court's order is moot, we
declare rights relative to it and vacate the order because it is
constitutionally infirm. In 2018AP1214-W, we are equally
divided regarding the appropriate disposition and therefore
affirm the decision of the court of appeals. We consolidate the
cases because the facts and procedural history of each are
intertwined and collectively provide necessary background
information for a full understanding of our decision.
2 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
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No. 2018AP1296-CR & 2018AP1214-W
stay. Fitzgerald petitioned the court of appeals for a
supervisory writ, arguing that the automatic stay begins upon
entry of the involuntary medication order rather than upon
filing a notice of appeal as the court of appeals ultimately
held. Because the court is equally divided on the writ matter,
we affirm the court of appeals decision denying Fitzgerald's
petition for a supervisory writ.
¶2 We do, however, address Fitzgerald's challenge to the
constitutionality of Wis. Stat. § 971.14 based on its
incompatibility with Sell v. United States, 539 U.S. 166 (2003).
In Sell, the United States Supreme Court held that in limited
circumstances the government may involuntarily medicate a
defendant to restore his competency to proceed to trial, and it
outlined four factors that must be met before a circuit court
may enter an order for involuntary medication. We hold that the
standard for ordering involuntary medication set forth in
§ 971.14(3)(dm) and (4)(b) is unconstitutional to the extent it
requires circuit courts to order involuntary medication based on
the standard set forth in paragraph (3)(dm), which does not
comport with Sell. We conclude circuit courts may order
involuntary medication to restore trial competency under
§ 971.14 only when the order complies with the Sell standard.
We vacate the circuit court's order for involuntary medication
in this case because it is constitutionally insufficient.
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No. 2018AP1296-CR & 2018AP1214-W
I. BACKGROUND
¶3 In October 2016, the State charged Fitzgerald with
possession of a firearm contrary to a harassment injunction.3
The circuit court ordered a competency evaluation, which showed
Fitzgerald suffered from "Schizoaffective disorder" and lacked
substantial mental capacity to understand the proceedings or to
be of meaningful assistance in his own defense. In December
2017, the circuit court signed an Order of Commitment for
Treatment requesting an assessment for Fitzgerald's
participation in the Outpatient Competency Restoration Program
(OCRP). Dr. Brooke Lundbohm, a psychologist, sent the circuit
court an OCRP assessment letter in February 2018, concluding
that Fitzgerald "is clinically appropriate for the Outpatient
Competency Restoration Program at this time and has been
admitted to the Program," despite Fitzgerald having a history of
refusing to take prescribed medication. In April 2018, Lundbohm
informed the circuit court by letter that Fitzgerald's "status
with the Outpatient Competency Restoration Program has changed,"
and he was "no longer clinically appropriate for participation
in" OCRP due to safety concerns. The letter also noted that
Fitzgerald displayed a lack of motivation to participate in the
program. On that basis, the circuit court "deemed [Fitzgerald]
no longer clinically appropriate for OCRP," remanded Fitzgerald
3 The charge alleged violations of Wis. Stat.
§§ 941.29(1m)(g) and 939.50(3)(g) (2015-16).
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No. 2018AP1296-CR & 2018AP1214-W
to the Department of Health Services' (DHS) custody, and ordered
a second competency evaluation under Wis. Stat. § 971.14.
¶4 In May 2018, Dr. Ana Garcia, a psychologist, conducted
Fitzgerald's second competency evaluation and sent her report to
the circuit court. The report noted Fitzgerald's
Schizoaffective Disorder diagnosis and explained he had been
"treated with Seroquel (antipsychotic medication) and
Benztropine (medication used to treat the side effects of
psychotropic medications)." Garcia reported that when
Fitzgerald refused to take his medication while hospitalized,
"an injectable version of the medication could not be forced
upon him" because no order to medicate involuntarily existed.
If treated with medication, Garcia opined Fitzgerald would
"likely . . . be restored to competency within the statutory
period," and further noted that Fitzgerald was "incapable of
expressing a rational understanding of the benefits and risks of
medication or treatment." Accordingly, Garcia concluded that
Fitzgerald was "not competent to refuse medication or
treatment," and recommended that treatment continue on an
inpatient basis. As to the anticipated effectiveness of the
recommended treatment in restoring Fitzgerald's competency,
Garcia noted in her report that "[t]reatment with antipsychotic
medication is known to be effective in treating symptoms of
psychosis, which is precluding [Fitzgerald's] competence to
proceed" in his criminal case.
¶5 On June 18, 2018, the circuit court held a hearing on
whether to issue an order for involuntary medication under Wis.
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No. 2018AP1296-CR & 2018AP1214-W
Stat. § 971.14. During that hearing, Garcia testified,
explaining why she believed the circuit court should issue an
order for involuntary medication:
• "Fitzgerald has continued to exhibit indications of
psychotic symptoms" and was "unable to discuss his
charges in a reasonable way."
• "[W]e find psychotropic medication to help him better
organize his thoughts, reduce the auditory
hallucinations, and reduce the delusional beliefs."
• Fitzgerald refused to take his medications and attempted
to hide them in his room.
Garcia testified that "as a psychologist, I don't prescribe
specific medications" but "I do know that for treating
schizophrenia and schizoaffective disorder, the primary
treatment is an antipsychotic medication, and he had been
prescribed" the generic version of Seroquel during his admission
at Mendota Mental Health Institute.
¶6 Fitzgerald also testified at the hearing. He thought
he had been misdiagnosed, explained he had "been feeling really
fine" without medication, and stated that he did not wish to
submit to forced medication, expressing concerns about the
dosage.
¶7 After the close of testimony, the circuit court
ordered the administration of involuntary medication to restore
Fitzgerald's competency. The circuit court explained the basis
for its order:
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No. 2018AP1296-CR & 2018AP1214-W
[T]here is an important government interest at stake
here and that is the fact that he's charged with a
serious felony. It may be a status offense, but the
fact is he is alleged to be carrying a gun while under
a prohibition for carrying a gun, and I recall the
motion hearing that we had in this matter when the
police approached him and searched him, which I found
was a valid search. And so, therefore, that is in my
opinion an important government interest, the
furtherance of this felony.
The fact that he does not take his medication is
not facilitating him to be restored to competency.
That's what this is all about so he can stand trial on
whether or not he is guilty of this very serious
offense; therefore, the fact that he's not taking his
meds and has to be given them involuntarily does
further that interest and I think it's also a
necessary reason to further that interest. And we've
got testimony from Dr. Garcia, who has reviewed his
psychiatrist [sic] that the two meds or the medication
that is prescribed for him is appropriate, and it was
appropriate back in earlier 2013, when he was not
taking and engaged in violence with his mother.[4]
4 Although the circuit court also listed several violent
incidents outlined in Garcia's report and opined that "those
things that I've read into the record I think exhibit that Mr.
Fitzgerald, while not on the prescribed medications, is
dangerous to himself and to others," the circuit court's written
order for involuntary medication was not based on Fitzgerald's
dangerousness. Rather, the circuit court checked the box on the
form order reflecting the following grounds for involuntary
medication: Fitzgerald was "mentally ill" and "charged with at
least one serious crime," and the treatment was (1) "necessary
to significantly further important government interests," (2)
"substantially likely to render the defendant competent to stand
trial," (3) "substantially unlikely to have side effects that
undermine the fairness of the trial," (4) "necessary because
alternative, less intrusive treatments are unlikely to achieve
substantially the same results," and (5) "medically
appropriate." The circuit court did not check the box
indicating treatment was necessary because Fitzgerald was
dangerous.
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No. 2018AP1296-CR & 2018AP1214-W
¶8 On June 20, 2018, before Fitzgerald filed his notice
of intent to pursue postdisposition relief, this court decided
Scott, 382 Wis. 2d 476. In Scott, we exercised our
superintending authority to "order that involuntary medication
orders [under Wis. Stat. § 971.14] are subject to an automatic
stay pending appeal." Id., ¶43. On June 25, 2018, Fitzgerald
filed his "Notice of Intent to Pursue Postdisposition Relief"
and two days later filed a letter informing the circuit court
that his medication order was automatically stayed under Scott.5
¶9 On June 27, 2018, the circuit court held another
hearing. The circuit court granted the stay, but indicated that
it would immediately lift the stay on the State's motion. On
June 28, 2018, the same day Fitzgerald filed his petition for a
supervisory writ in the court of appeals, the circuit court
"vacate[d] the [June 27] proceedings" related to the automatic
stay. The circuit court expressed uncertainty as to whether
Scott's automatic stay occurs "after the appeal is filed or is
it automatic when there's a notice of intent to appeal filed or
is it automatic if there's merely an allegation that the
defendant is going to file an appeal." In order to "err on the
side of caution," the circuit court ordered its June 18th
involuntary medication order stayed and set the matter to be
5
The letter is dated June 25, 2018, and marked "Received
06-25-2018" in the upper right corner. Counsel asserts in the
letter that it was being filed "simultaneously" with the Notice
of Intent, but according to the electronic record, the letter
was not filed until June 27, 2018.
8
No. 2018AP1296-CR & 2018AP1214-W
heard again in two weeks. The circuit court reasoned: "[i]f
the appeal is not filed I will lift the stay because then
clearly [the] Scott case doesn't apply," and "[i]f the appeal is
filed the State can then file a motion to lift the stay." The
circuit court then signed a written order granting a stay of the
June 18th involuntary medication order, but on that same day,
Fitzgerald filed a petition for a supervisory writ in the court
of appeals, challenging the circuit court's plan to lift the
automatic stay without requiring the State to make the showing
required under Scott. On July 9, 2018, Fitzgerald also filed a
separate notice of appeal seeking review of the circuit court's
June 18th Order for Commitment, specifically challenging the
order for involuntary administration of medication.
¶10 On July 12, 2018, the court of appeals denied
Fitzgerald's petition for a supervisory writ. State ex rel.
Fitzgerald v. Circuit Court for Milwaukee Cty., No. 2018AP1214-
W, unpublished order (Wis. Ct. App. July 12, 2018). Because the
circuit court's stay remained in effect, the court of appeals
concluded that "to the extent Scott establishes the automatic
stay as a plain duty, the circuit court has complied." Id. at
5. However, the court of appeals also concluded that
"Fitzgerald was not entitled to an automatic stay until he
actually had a pending appeal, and that did not happen until he
filed the notice of appeal on July 9, 2018." Id. (emphasis
added). Fitzgerald petitioned for review of the court of
appeals decision denying a supervisory writ, which we granted.
Fitzgerald also petitioned to bypass the court of appeals for
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No. 2018AP1296-CR & 2018AP1214-W
review of the June 18th underlying medication order, and we
granted the bypass petition and ordered both cases to be argued
on March 20, 2019.
¶11 Before this court heard oral argument in Fitzgerald's
cases, the circuit court found Fitzgerald competent and resumed
the criminal proceedings. Fitzgerald pled guilty to the
underlying charge on January 11, 2019, and the circuit court
sentenced him to time served. Consequently, the State moved to
dismiss as moot both of Fitzgerald's cases, but we denied the
motion. After oral argument, we consolidated the two cases for
the purposes of disposition.
II. DISCUSSION
A. Standard of Review
¶12 The sole issue we resolve is the constitutionality of
the standard for involuntary medication under Wis. Stat.
§ 971.14(3)(dm) and (4)(b). This court presumes the
constitutionality of a statute and tasks a party challenging it
with the "very heavy burden" of proving its unconstitutionality
"beyond a reasonable doubt." Mayo v. Wisconsin Injured Patients
and Families Comp. Fund, 2018 WI 78, ¶¶25, 27, 383 Wis. 2d 1,
914 N.W.2d 678 (quoted source omitted). Citing Mayo, Fitzgerald
urges us to "restore the balance of [constitutional] power
between the judiciary and the legislature in Wisconsin" by
employing the standard applied by the United States Supreme
Court, which requires a "plain showing" or clear demonstration
of unconstitutionality. See id., ¶¶79, 90 (Rebecca Grassl
Bradley, J. concurring) (quoted source omitted). We need not
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resolve Fitzgerald's challenge to the prevailing standard of
review for challenges to the constitutionality of a statute
because § 971.14(3)(dm) and (4)(b) are undoubtedly
unconstitutional to the extent they require a circuit court to
order the involuntary medication of a defendant when the Sell
factors have not been met.
B. Analysis
1. Constitutional Principles
¶13 Under the Due Process Clause, individuals have "a
significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs." Washington v. Harper,
494 U.S. 210, 221 (1990). "[O]nly an 'essential' or
'overriding' state interest" can overcome this constitutionally-
protected liberty interest. Sell, 539 U.S. at 178-79 (quoting
Riggins v. Nevada, 504 U.S. 127, 134 (1992)). In Sell, the
United States Supreme Court addressed "whether the Constitution
permits the Government to administer antipsychotic drugs
involuntarily to a mentally ill criminal defendant——in order to
render that defendant competent to stand trial for serious, but
nonviolent, crimes." Sell, 539 U.S. at 169. The Court held
that it does, but only under particular circumstances:
[T]he Constitution permits the Government
involuntarily to administer antipsychotic drugs to a
mentally ill defendant facing serious criminal charges
in order to render that defendant competent to stand
trial, but only if the treatment is medically
appropriate, is substantially unlikely to have side
effects that may undermine the fairness of the trial,
and, taking account of less intrusive alternatives, is
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No. 2018AP1296-CR & 2018AP1214-W
necessary significantly to further important
governmental trial-related interests.
Id. at 179 (emphasis added). Although permissible in certain
situations, the Sell Court explained that the "administration of
drugs solely for trial competence purposes . . . may be rare."
Id. at 180. The Court established a four-factor test to
determine whether such medication is constitutionally
appropriate.
¶14 "First, a court must find that important governmental
interests are at stake." Id. "[B]ringing to trial an
individual accused of a serious crime" against a person or
property is an important interest. Id. The Court did, however,
emphasize that prior to entering an order for involuntary
medication, courts "must consider the facts of the individual
case in evaluating the Government's interest in prosecution."
Id.¶15 "Second, the court must conclude that involuntary
medication will significantly further" the government's interest
in prosecuting the offense. Id. at 181. This means that a
court "must find that administration of the drugs is
substantially likely to render the defendant competent to stand
trial" and "unlikely to have side effects that will interfere
significantly with the defendant's ability to assist counsel in
conducting a trial defense, thereby rendering the trial unfair."
Id.¶16 "Third, the court must conclude that involuntary
medication is necessary to further those interests." Id. In
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other words, "[t]he court must find that any alternative, less
intrusive treatments are unlikely to achieve substantially the
same results." Id. In order to make this finding, the deciding
court "must consider less intrusive means for administering the
drugs, e.g., a court order to the defendant backed by the
contempt power, before considering more intrusive methods." Id.In other words, the Sell Court considered an order directed at
the defendant, requiring him to accept medication or be found in
contempt of court, to be less intrusive than ordering an entity
like DHS to forcibly administer medication to the defendant.
¶17 "Fourth, . . . the court must conclude that
administration of the drugs is medically appropriate, i.e., in
the patient's best medical interest in light of his medical
condition." Id. The Sell Court explained that "[t]he specific
kinds of drugs at issue may matter here as elsewhere" because
"[d]ifferent kinds of antipsychotic drugs may produce different
side effects and enjoy different levels of success." Id.¶18 The Court explained that "these standards . . . seek[]
to determine whether involuntary administration of drugs is
necessary significantly to further a particular governmental
interest, namely, the interest in rendering the defendant
competent to stand trial," and "[a] court need not consider
whether to allow forced medication for that kind of purpose, if
forced medication is warranted for a different purpose, such as
[one] . . . related to the individual's dangerousness,
or . . . health." Id. at 181-82. The Court explained that
"[t]here are often strong reasons for a court to determine
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whether forced administration of drugs can be justified on these
alternative grounds before turning to the trial competence
question," in part because "the inquiry into whether medication
is permissible, say, to render an individual nondangerous is
usually more 'objective and manageable' than the inquiry into
whether medication is permissible to render a defendant
competent." Id. at 182 (quoted source omitted).
The medical experts may find it easier to provide an
informed opinion about whether, given the risk of side
effects, particular drugs are medically appropriate
and necessary to control a patient's potentially
dangerous behavior (or to avoid serious harm to the
patient himself) than to try to balance harms and
benefits related to the more quintessentially legal
questions of trial fairness and competence.
Id.
2. Wisconsin Stat. § 971.14
¶19 Wisconsin Stat. § 971.14 requires a circuit court to
enter an order for involuntary medication to restore a criminal
defendant's competency to proceed provided the statutory
parameters are met. Under the statute, the circuit court shall
order a competency examination if "there is reason to doubt a
defendant's competency to proceed." § 971.14(1r)(a), (2). The
circuit court appoints "one or more examiners having the
specialized knowledge determined by the court to be appropriate
to examine and report upon the condition of the defendant."
§ 971.14(2)(a). "The examiner shall submit to the court a
written report." § 971.14(3). Among other things, the report
must include:
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(c) The examiner's opinion regarding the
defendant's present mental capacity to understand the
proceedings and assist in his or her defense.
(d) If the examiner reports that the defendant
lacks competency, the examiner's opinion regarding the
likelihood that the defendant, if provided treatment,
may be restored to competency within the time period
permitted under sub. (5)(a). . . .
(dm) If sufficient information is available to
the examiner to reach an opinion, the examiner's
opinion on whether the defendant needs medication or
treatment and whether the defendant is not competent
to refuse medication or treatment. The defendant is
not competent to refuse medication or treatment if,
because of mental illness, developmental disability,
alcoholism or drug dependence, and after the
advantages and disadvantages of and alternatives to
accepting the particular medication or treatment have
been explained to the defendant, one of the following
is true:
1. The defendant is incapable of expressing
an understanding of the advantages and
disadvantages of accepting medication or
treatment and the alternatives.
2. The defendant is substantially incapable
of applying an understanding of the advantages,
disadvantages and alternatives to his or her
mental illness, developmental disability,
alcoholism or drug dependence in order to make an
informed choice as to whether to accept or refuse
medication or treatment.
§ 971.14(3)(c)-(dm) (emphasis added).
¶20 After the report's submission, the circuit court must
hold a hearing. Wis. Stat. § 971.14(4). Unless the parties
waive their opportunity to present additional evidence, the
circuit court shall hold an evidentiary hearing.
§ 971.14(4)(b). If the State proves by clear and convincing
evidence "that the defendant is not competent to refuse
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medication or treatment, under the standard specified in sub.
(3)(dm), the court shall make a determination without a jury and
issue an order that the defendant is not competent to refuse
medication or treatment." § 971.14(4)(b) (emphasis added).6 In
other words, the circuit court "shall" order involuntary
medication or treatment if the standard described in
§ 971.14(3)(dm) is met: either the defendant is "incapable of
expressing an understanding of the advantages and disadvantages"
of medication or treatment or "substantially incapable of
applying an understanding of" his mental illness "in order to
make an informed choice" "to accept or refuse medication or
treatment." The statute additionally provides "whoever
administers the medication or treatment to the defendant shall
observe appropriate medical standards." § 971.14(4)(b).
3. Wisconsin Stat. § 971.14(3)(dm) and (4)(b) do not
conform with Sell's constitutional parameters.
¶21 As a preliminary matter, we explain this court's
denial of the State's motion to dismiss Fitzgerald's cases on
mootness grounds. "An issue is moot when its resolution will
have no practical effect on the underlying controversy."
Portage Cty. v. J.W.K., 2019 WI 54, ¶11, ___ Wis. 2d ___, ___
N.W.2d ___ (quoted source omitted); see also City of Racine v.
6
When a defendant claims to be competent, Wis. Stat.
§ 971.14(4)(b) first requires the State to prove by clear and
convincing evidence that the defendant is not competent.
Because Fitzgerald previously conceded he was not competent,
that portion of the statute is not at issue.
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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)). As a general matter, we decline to
reach moot issues. J.W.K., __ Wis. 2d __, ¶12. Fitzgerald is
no longer subject to the medication order he challenges; he
regained competency and pled guilty. Therefore, the issues
presented in reviewing that order are moot. See Winnebago Cty.
v. Christopher S., 2016 WI 1, ¶31, 366 Wis. 2d 1, 878 N.W.2d 109(explaining that "when an appellant appeals an order to which he
or she is no longer subjected," the case is moot).
¶22 We may, however, decide an otherwise moot issue if it
fits under one of the following exceptions: (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 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. v. State, 118
Wis. 2d 803, 805, 348 N.W.2d 181 (1984); see also J.W.K., __
Wis. 2d __, ¶12. In this case, Fitzgerald challenges the
constitutionality of Wis. Stat. § 971.14, which presents an
issue of great public importance. Additionally, competency
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No. 2018AP1296-CR & 2018AP1214-W
restoration for the purpose of prosecuting a criminal defendant
arises often enough to warrant a definitive decision in order to
guide the circuit courts regarding the constitutional standard
for ordering involuntary medication to restore a defendant's
competency to proceed. Accordingly, we choose to examine the
constitutionality of § 971.14.7 We hold that § 971.14(4)(b) is
unconstitutional to the extent it requires circuit courts to
order involuntary medication based on the standard set forth in
paragraph (3)(dm), which does not comport with Sell, 539 U.S.
166.
¶23 Fitzgerald argues that Wis. Stat. § 971.14 is
inconsistent with the factors outlined in Sell, resulting in an
unconstitutional violation of his protected liberty interest in
avoiding involuntary medication. He construes § 971.14 to
"permit[] a court to commit a person accused of a crime for
involuntary treatment . . . to restore competency based on his
inability to understand, express or apply the advantages,
disadvantages and alternatives to treatment or medication,"
without requiring the State to satisfy the Sell factors.
¶24 The State contends that Wis. Stat. § 971.14 is
constitutional, arguing that Sell requires an involuntary
7
Fitzgerald additionally argues that the circuit court
incorrectly calculated his sentence credit during the hearing on
the order for involuntary medication. We do not review this
issue because he pled guilty and was sentenced to time served;
the issue is moot and review is unwarranted under the exceptions
to dismissal for mootness.
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No. 2018AP1296-CR & 2018AP1214-W
medication order issued by a circuit court to meet the Sell
standard and does not apply to a statute like § 971.14 governing
the procedures the government must follow in order to obtain an
involuntary medication order. Even if Sell does control the
statute, the State argues that § 971.14 is constitutional
because its language partially encompasses the Sell factors, and
"the circuit courts of the State of Wisconsin have been directed
to comply with the Sell test when issuing orders for commitment
and involuntary medication" using Form CR-206 (which lists the
Sell factors), the Judicial Benchbook, and Wis JI——Criminal SM-
50 (2018).
¶25 We hold that Wis. Stat. § 971.14(4)(b) is
unconstitutional to the extent it requires circuit courts to
order involuntary medication based on the standard set forth in
paragraph (3)(dm), which does not comport with Sell. Paragraph
(4)(b) requires the circuit court to "issue an order that the
defendant is not competent to refuse medication" if the State
proves that the defendant is not competent to refuse treatment
under the standard set forth in paragraph (3)(dm). In general
terms, paragraph (3)(dm) considers a defendant not competent to
refuse treatment if he is either "incapable of expressing an
understanding" of the proposed medication or treatment or
"substantially incapable of applying an understanding" of his
mental illness "in order to make an informed choice" regarding
medication or treatment. Under this statutory standard, a
circuit court must order involuntary medication to restore trial
competence regardless of whether the factors outlined in Sell
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are met.8 The mere inability of a defendant to express an
understanding of medication or make an informed choice about it
is constitutionally insufficient to override a defendant's
"significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs." Harper, 494 U.S. at
221.
¶26 A comparison of the text of the statutory standard
with the constitutional standard outlined in Sell illustrates
how the statute falls short of protecting the significant
liberty interest in avoiding the unwanted administration of
psychotropic drugs. Specifically, paragraph (3)(dm) does not
require the circuit court to find that an important government
"interest in bringing to trial an individual accused of a
serious crime" is at stake, as required by the first Sell
factor. Sell, 539 U.S. at 180. Wisconsin Stat. § 971.14 merely
requires the circuit court to find probable cause that the
defendant committed a crime——not necessarily a serious one. See
§ 971.14(1r). Nor does the statute require an individualized
assessment of the circumstances surrounding the case, which may
impact the circuit court's application of this factor. Even for
serious crimes, "[s]pecial circumstances may lessen" the
8
The statute directs that the circuit court "shall" issue
the order for involuntary medication if paragraph (3)(dm) is
met. Wis. Stat. § 971.14(4)(b). "Shall" is "presumed
mandatory." State ex rel. DNR v. Wisconsin Court of Appeals,
Dist. IV, 2018 WI 25, ¶13 n.7, 380 Wis. 2d 354, 909 N.W.2d 114(quoted source omitted).
20
No. 2018AP1296-CR & 2018AP1214-W
importance of the State's interest in trying the case. Sell,
539 U.S. at 180. For example, "[t]he defendant's failure to
take drugs voluntarily . . . may mean lengthy confinement in an
institution for the mentally ill——and that would diminish the
risks that ordinarily attach to freeing without punishment one
who has committed a serious crime." Id. In other words, the
"facts of the individual case" determine the importance of the
government's interest. Id. Paragraph (3)(dm) leaves no room
for weighing such details.
¶27 The directive to order medication under Wis. Stat.
§ 971.14(3)(dm) similarly fails to include consideration of the
second Sell factor: "that administration of the drugs is
substantially likely to render the defendant competent to stand
trial" and "unlikely to have side effects that will interfere
significantly with the defendant's ability to assist counsel in
conducting a trial defense, thereby rendering the trial unfair."
Sell, 539 U.S. at 181. While the expert's report must include
"the examiner's opinion regarding the likelihood that the
defendant, if provided treatment, may be restored to competency
within the [statutory] time period,"9 paragraph (3)(dm) does not
require the circuit court to conclude that medication is
substantially likely to restore a defendant's competency or to
consider whether side effects "will interfere significantly with
the defendant's ability to assist counsel in conducting a trial
defense." Sell, 539 U.S. at 181.
9 Wis. Stat. § 971.14(3)(d).
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No. 2018AP1296-CR & 2018AP1214-W
¶28 As to the third Sell factor, the statute falls short
of the constitutional prerequisite espoused in Sell requiring
the circuit court to conclude that involuntary treatment is
necessary to further important government interests. This
factor commands the circuit court to consider and rule out——as
unlikely to achieve substantially the same results——less
intrusive options for treatment as well as for administering the
drugs. In contrast, Wis. Stat. § 971.14(4)(b) mandates
involuntary medication if the State establishes pursuant to
paragraph (3)(dm) the defendant's inability to either express an
understanding of the advantages and disadvantages of medication
or to make an informed choice about it, regardless of the
existence of less intrusive but nonetheless effective options.
¶29 The fourth Sell factor requires the circuit court to
conclude that medication is "medically appropriate" meaning "in
the patient's best medical interest in light of his medical
condition." Sell, 539 U.S. at 181. In contrast, Wis. Stat.
§ 971.14(4)(b) imposes an obligation on "whoever administers the
medication or treatment to the defendant" to "observe
appropriate medical standards." § 971.14(4)(b) (emphasis
added). The State argues "appropriate medical standards" might
encompass a consideration of the defendant's best medical
interest but paragraph (4)(b) addresses the administration of
medication or treatment, not whether such treatment should be
ordered in the first place. Nothing in the statute empowers the
person administering the drugs to override the circuit court's
order that the drugs be administered. Sell requires the circuit
22
No. 2018AP1296-CR & 2018AP1214-W
court to conclude that the administration of medication is
medically appropriate, not merely that the medical personnel
administering the drugs observe appropriate medical standards in
the dispensation thereof.
¶30 The State's reliance on extrinsic materials to support
the constitutionality of Wis. Stat. § 971.14(3)(dm) and (4)(b)
is unavailing. Although circuit courts must use Form CR-206,10
which lists the Sell factors,11 and the circuit court used that
form to order the involuntary medication of Fitzgerald in this
case, a judicially-created form cannot save a constitutionally
infirm statute. While Form CR-206 directs the circuit court to
make findings consistent with Sell, the statute requires the
circuit court to order treatment if the statutory standard is
met, regardless of whether the Sell findings are made.
Likewise, the Special Materials to the jury instructions and the
Judicial Benchbook cited by the State cannot alter or supplement
10
Wisconsin Stat. § 971.025(1) ("In all criminal
actions . . . the parties and court officials shall use the
standard court forms adopted by the judicial conference.").
11
Form CR-206 lists the Sell factors, but does not identify
their source. See Sell v. United States, 539 U.S. 166 (2003).
Additionally, the form does not address the gaps between the
standard in Wis. Stat. § 971.14(3)(dm) and (4)(b) and the
constitutional principles set forth in Sell. The judicial
conference may wish to consider modifying this form to clarify
that circuit courts must follow Sell regardless of whether the
standard in § 971.14(3)(dm) and (4)(b) has been met. See Wis.
Stat. § 758.18(1) ("The judicial conference shall adopt standard
court forms for use by parties and court officials in all civil
and criminal actions and proceedings in the circuit court[.]").
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the statutory text enacted by the legislature, which binds the
circuit courts. See Hefty v. Strickhouser, 2008 WI 96, ¶33
n.11, 312 Wis. 2d 530, 752 N.W.2d 820 (explaining that the
Judicial Benchbook "is not intended to stand as independent
legal authority for any proposition of law" and is merely "an
informed and insightful discussion of practice"); State v.
Gilbert, 115 Wis. 2d 371, 379, 340 N.W.2d 511 (1983) (explaining
that special materials are "persuasive" authority). We do not
read words into a statute regardless of how persuasive the
source may be; rather, we interpret the words the legislature
actually enacted into law. "Under the omitted-case canon of
statutory interpretation, '[n]othing is to be added to what the
text states or reasonably implies (casus omissus pro omisso
habendus est). That is, a matter not covered is to be treated
as not covered.'" Lopez-Quintero v. Dittman, 2019 WI 58, ¶18,
___ Wis. 2d ___, ___ N.W.2d ___ (quoting Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 93
(2012)). "One of the maxims of statutory construction is that
courts should not add words to a statute to give it a certain
meaning." Fond Du Lac Cty. v. Town of Rosendale, 149
Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989).
¶31 Application of the statutory mandate requires an order
for involuntary medication based solely on the defendant's
inability to express an understanding of treatment or make an
informed choice of whether to accept or refuse it, resulting in
the unconstitutional deprivation of the defendant's significant
liberty interest in avoiding the unwanted administration of
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No. 2018AP1296-CR & 2018AP1214-W
medication. The fortuity of circuit courts sometimes following
Sell as a result of using Form CR-206, the special materials to
the jury instructions, and the Benchbook despite Wis. Stat.
§ 971.14's contrary directive may ensure that certain court
orders comport with the Constitution but cannot render the
statute itself constitutional.
¶32 To the extent Wis. Stat. § 971.14(3)(dm) and (4)(b)
require circuit courts to order involuntary medication when the
Sell factors have not been met, the statute unconstitutionally
infringes the individual liberty interest in avoiding the
unwanted administration of anti-psychotropic drugs. Our holding
does not preclude circuit courts from ordering involuntary
medication for purposes of restoring a criminal defendant's
competency provided the circuit courts apply the standard set
forth in Sell.
¶33 Applying this holding to the present case, the State
conceded at oral argument that the circuit court did not
consider the side effects of the proposed medication or whether
those side effects would interfere significantly with
Fitzgerald's ability to assist in his defense.12 After reviewing
the circuit court's decision, we agree with the State. The
circuit court never found, as it must, "that administration of
the drugs is substantially likely to render the defendant
12
The box the circuit court checked on Form CR-206 listed
the Sell factors, including the second factor, but the court
never addressed the side effects on the record.
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No. 2018AP1296-CR & 2018AP1214-W
competent to stand trial" and "unlikely to have side effects
that will interfere significantly with the defendant's ability
to assist counsel in conducting a trial defense, thereby
rendering the trial unfair." See Sell, 539 U.S. at 181. We
therefore vacate the circuit court's order for involuntary
medication.
4. Supervisory Writ
¶34 In his petition for a supervisory writ, Fitzgerald
argues this court should exercise its superintending authority
and hold that the stay established in Scott begins automatically
upon entry of the order for involuntary medication. The State
opposes his request, arguing that "Fitzgerald did not establish
the requisite elements for a supervisory writ" and requests that
we "decline to exercise [our] superintending authority" to grant
relief to Fitzgerald. The court is equally divided on the
issue of when the automatic stay established in Scott begins.
Therefore, we affirm the decision of the court of appeals
denying Fitzgerald's petition for a supervisory writ. See State
v. Garcia, 2019 WI 40, ¶1, 386 Wis. 2d 386, 925 N.W.2d 528 (per
curiam) (affirming the court of appeals decision because the
court was equally divided); see also, Gruhl Sash & Door Co. v.
Chicago, M. & St. P. Ry. Co., 173 Wis. 215, 215, 180 N.W. 845(1921) (explaining that where the supreme court is equally
divided, the "established rule" is to affirm the court of
appeals decision).
III. CONCLUSION
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No. 2018AP1296-CR & 2018AP1214-W
¶35 Circuit courts may order involuntary medication to
restore a defendant's competency to proceed in a criminal case,
provided the four factors the United States Supreme Court
established in Sell are met. To the extent Wis. Stat.
§ 971.14(3)(dm) and (4)(b) require circuit courts to order
involuntary medication when the Sell standard has not been met,
the statute is unconstitutional. Because the circuit court did
not apply the Sell factors, we vacate the circuit court's order.
¶36 Because the court is equally divided on Fitzgerald's
petition to review the court of appeals decision denying his
request for a supervisory writ, we affirm the decision of the
court of appeals.
By the Court.——The order of the circuit court is vacated;
the decision of the court of appeals is affirmed by an equally
divided court.
¶37 SHIRLEY ABRAHAMSON, J., withdrew from participation
before oral argument.
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¶38 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). The
issue presented by this review is whether the circuit court
unconstitutionally ordered Raytrell K. Fitzgerald to be
involuntarily medicated because his mental condition prevented
him from being competent to stand trial. The majority opinion
focuses its attention on Wis. Stat. § 971.14(3)(dm) and opines
that paragraph (3)(dm) is unconstitutional unless a gloss from
Sell v. United States, 539 U.S. 166 (2003) is applied to the
statute.1
¶39 I agree that generally the Sell factors must enter
into the circuit court's consideration of whether to order
involuntary medication so as to render an incompetent defendant
competent to stand trial. However, there are occasions when a
defendant who is not competent to stand trial also will be
dangerous to himself or to others. In those occasions, the Sell
factors will not be relevant. As the United States Supreme
Court has explained:
A court need not consider whether to allow forced
medication for that kind of purpose, if forced
medication is warranted for a different purpose, such
as . . . the individual's dangerousness.
Id. at 181-82 (citing Washington v. Harper, 494 U.S. 210, 225-26
(1990)). Furthermore, determining whether medication is
necessary to control dangerous behavior is often an easier task
for a medical expert than it is for the expert to balance the
1 Majority op., ¶2.
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No. 2018AP1296-CR & 20181214-W.pdr
harms and benefits related to opining on legal competence. Id.
at 182.
¶40 Wisconsin Stat. § 971.14 addresses competency
proceedings. Paragraph (1r) instructs that "[t]he court shall
proceed under this section whenever there is reason to doubt a
defendant's competency to proceed." The statute permits the
court to order an examination of the defendant "for competency
purposes at any stage of the competency proceedings by
physicians or other experts." § 971.14(2)(g)
¶41 The record reveals that Fitzgerald was removed from
outpatient treatment because of incidents of violent conduct in
relation to others. This was not the focus of the circuit
court. However, a statutory provision in addition to the forced
medication found in Wis. Stat. § 971.14(3)(dm) on which the
majority opinion focuses, is found in paragraph (2)(f).
¶42 Wisconsin Stat. § 971.14(2)(f) provides that a
defendant who is charged with a crime, is incompetent and also
is dangerous to himself or others is not affected by
§ 971.14(3)(dm). Instead, paragraph (2)(f) provides a different
test for refusing medication. It provides that a defendant "may
refuse medication and treatment except in a situation where the
medication or treatment is necessary to prevent physical harm to
the defendant or others." § 971.14(2)(f). Therefore, if
medication is ordered under paragraph (2)(f), as the United
States Supreme Court has explained, the Sell factors do not
apply. Sell, 539 U.S. at 182.
2
No. 2018AP1296-CR & 20181214-W.pdr
¶43 While I join the majority opinion's concern for adding
a Sell gloss to our interpretation of Wis. Stat. § 971.14(3)(dm)
in order to preserve its constitutionality, I write to point out
that if a defendant is dangerous to himself or others, ordering
treatment for that condition, which will likely return the
defendant to competency, does not employ the Sell factors.
Because I am concerned that paragraph (2)(f) could be
overlooked, I write in concurrence to point up its use when
appropriate.
¶44 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this concurrence.
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