State v. Wilson P. Anderson ( 2023 )

2023 WI 44SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP819-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Wilson P. Anderson,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 307 Wis. 2d 244, 959 N.W.2d 93(2021 – unpublished)
OPINION FILED: June 2, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 17, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: David A. Feiss
JUSTICES:
Per curiam. ROGGENSACK, J., filed a dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by David J. Susens, assistant state public defender. There
was an oral argument by David J. Susens, assistant state public
defender.
For the plaintiff-respondent, there was a brief filed by
Kara L. Janson, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Kara L. Janson, assistant attorney general.
An amicus curiae brief was filed by James E. Goldschmidt,
Ellen E. Anderson, Elise A. Ashley, and Quarles & Brady LLP,
Milwaukee, for the National Disability Rights Network.
2
2023 WI 44NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP819-CR
(L.C. No. 2020CM939)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JUN 2, 2023
Wilson P. Anderson, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 PER CURIAM. Wilson P. Anderson petitioned for review
of a court of appeals decision, State v. Anderson, No.
2020AP819-CR, unpublished slip op. (Wis. Ct. App. Mar. 16,
2021), that affirmed the circuit court's order authorizing the
involuntary administration of medication to restore Anderson's
competency. In its briefing and arguments to this court, the
State conceded that "it failed to meet its burden under Sell" at
Anderson's competency hearing, and the circuit court had
therefore erred when it ordered involuntary medication. See
Sell v. United States, 539 U.S. 166 (2003). Accordingly, we
summarily reverse the decision of the court of appeals, and
No. 2020AP819-CR
remand the cause to the circuit court with instructions to
vacate the involuntary medication order.
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court.
2
No. 2020AP819-CR
¶2 PATIENCE DRAKE ROGGENSACK, J. (dissenting). Today
this court fails to perform its obligation to declare the law.
Instead, it sidesteps the significant legal questions parties
brought to us to decide and we accepted when we granted Wilson
P. Anderson's petition for review. Because I would decide at
least whether a psychiatrist is necessary to give an opinion on
medicines that are sufficient to address Anderson's mental
illness and bring him to competency, I respectfully dissent from
this court's non-decision decision.
I. BACKGROUND
¶3 In March 2020, Anderson hit a stranger on the head
unprovoked, causing her bodily harm. Anderson was arrested, and
the State filed criminal charges against him the following day.
¶4 The circuit court ordered a competency report,1 which
Forensic Psychologist Dr. Debora L. Collins completed. As part
of her analysis, Dr. Collins reviewed the criminal complaint,
Anderson's medical records, and a summary of his interactions
with the Milwaukee County Behavioral Health Division.
Dr. Collins also administered a competency evaluation through
Anderson's cell door, due to Anderson's "level of agitation and
erratic behavior." Anderson "shouted and yelled comments"
throughout the evaluation. Dr. Collins was "not assured" that
Anderson understood the purpose of the evaluation. Anderson's
responses frequently were "slurred, mumbled, and/or otherwise
incoherent."2 Officers conveyed to Dr. Collins that Anderson
Honorable Dennis R. Cimpl of the Milwaukee County Circuit
1
Court presided.
2 R. 3 at 2, 3.
1
No. 2020AP819-CR
fashioned his hand in the shape of a gun and pointed his hand at
officers the day before the evaluation.
¶5 Dr. Collins filed a report in which she opined
Anderson was not competent to understand the criminal
proceedings against him or to aid in his defense. She
recommended psychiatric treatment at a state mental health
institute to restore competency but did not make any
recommendations for involuntary medication. Anderson was not
taking any medications at the time of his arrest, although he
had had more than 35 episodes of county care since 2011. His
records reflect a major mental illness often identified as
Schizoaffective disorder.3
¶6 Anderson requested a contested competency hearing, and
the court4 ordered Dr. Collins to file an addendum to her report
specifically outlining her opinion as to Anderson's need for
involuntary medication. Dr. Collins' addendum stated Anderson
was "not competent to make treatment decisions, including with
respect to psychotropic medications,"5 but Dr. Collins did not
provide an opinion as to a course of treatment, medication
dosages, or potential side effects that Anderson may experience.
¶7 On April 9, 2020, the court held a hearing regarding
Anderson's competency to stand trial and whether to subject
3 Id. at 3, 4.
4 Honorable Frederick C. Rosa of the Milwaukee County
Circuit Court presided.
5 R. 4 at 2.
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No. 2020AP819-CR
Anderson to an order for involuntary medication.6 Dr. Collins
was the only witness to testify. As part of her testimony, she
answered various questions:
Q Dr. Collins, your degree is in psychology; is that
right?
A Yes.
Q You have no medical training as a medical doctor;
is that correct?
A I am not a medical doctor. I'm a psychologist.
Q You are not able to prescribe medications to anyone
at this time in the course of your present
employment?
A That is correct.[7]
¶8 Anderson did not object to Dr. Collins' testimony
regarding his competency, but he objected to Dr. Collins'
"medication order testimony."8 The court overruled Anderson's
objections and allowed Dr. Collins to testify "on both facets."9
The court issued an involuntary medication and commitment order.
The circuit court stayed the order for involuntary medication on
April 16, 2020.10
¶9 Anderson appealed the order, asking the court of
appeals "whether the State offered sufficient evidence to
6 Honorable David Feiss of the Milwaukee County Circuit
Court presided.
7 R. 18 at 5, 6.
8 Id. at 7.
9 Id. at 8.
10 R. 12 at 1.
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No. 2020AP819-CR
support an order for involuntary medication under Sell v. United
States."11 The court of appeals affirmed the circuit court's
involuntary commitment order in an unpublished decision. State
v. Anderson, No. 2020AP160-CR, unpublished slip op. (Wis. Ct.
App. Mar. 16, 2021).
¶10 Anderson petitioned this court for review, on the
heels of State v. Green. Because we granted Green's petition
for review, we held Anderson's case in abeyance until we
released our opinion in Green on May 13, 2022. State v. Green,
2022 WI 30, 401 Wis. 2d 542, 973 N.W.2d 770. We ordered parties
in State v. Anderson to submit simultaneous letter briefs as to
whether our opinion in Green resolved their issues.
¶11 Anderson's May 27, 2022 letter brief argued our
decision in Green did not resolve his issues. He clarified that
"[he] objects only to the court's reliance on the
unconstitutional portions of [Wis. Stat.] § 971.14 [(2021-22)]12
and the state's failure to present a treatment plan and use
evidence from a licensed physician to prove the second, third,
and fourth Sell factors." The State's letter brief of the same
day clarified the State's position: "[Anderson] contends that
Green [396 Wis. 2d 658] requires the State to offer an
individualized treatment plan to satisfy the Sell factors. . . .
The State agrees with Anderson that the court of appeals here
erred by not applying Green when determining whether the State
11 Sell v. United States, 539 U.S. 166 (2003).
All subsequent references to the Wisconsin Statutes are
12
to the 2021-22 version unless otherwise indicated.
4
No. 2020AP819-CR
proved the Sell factors." We granted Anderson's petition for
review on September 13, 2022, ordered full briefing, and heard
oral argument on April 17, 2023. Despite all of the above,
today we disregard our constitutional function and we declare no
law.
II. DISCUSSION
A. Standard of Review
¶12 We review whether the circuit court complied with the
constitutional overlay of Sell v. United States, 539 U.S. 166(2003) to Wis. Stat. § 971.14 under the facts of this case as a
question of constitutional fact. As such, historic facts are
upheld unless clearly erroneous, and whether those facts satisfy
the constitutional standard in determination of the Sell factors
is a question of law for our independent review. State v.
Martwick, 2000 WI 5, ¶18, 231 Wis. 2d 801, 604 N.W.2d 552.
B. General Principles
¶13 Wisconsin courts have a long history with criminal and
civil commitment orders, as well as orders for involuntary
medication in both contexts. Despite this long history, many
questions remain unresolved.
¶14 In the criminal context (Wis. Stat. ch. 971), it is
likely that the substantial number of cases that have come to us
reflects the difficulty imposed on circuit courts that must
balance a prisoner's significant liberty interest to avoid
forced medication against the State's significant interest in
prosecuting defendants for the commission of a serious crime.
Sell, 539 U.S. at 178 (quoting Washington v. Harper, 494 U.S.
5No. 2020AP819-CR
210, 236 (1990)). See e.g., State v. Anderson, No. 2020AP819-
CR, Green, 401 Wis. 2d 542, State v. Yakich, 2022 WI 8, 400
Wis. 2d 549, 970 N.W.2d 12, State v. Fitzgerald, 2019 WI 69, 387
Wis. 2d 384, 929 N.W.2d 165.
¶15 The legal terrain reflects the complex reality of
involuntary medication orders to regain competency. In
Fitzgerald we comprehensively reviewed the constitutional
foundation, as developed in case law. Id., ¶¶13-18. There, we
underscored the root of an individual's "significant liberty
interest" in avoiding antipsychotic drugs is secured by the Due
Process Clause. Id., ¶13, (quoting Harper, 494 U.S. at 221).
We then summarized Sell, which announced a four-factor test "to
determine whether such [involuntary] medication is
constitutionally appropriate," and which also asserted that
"administration of drugs solely for trial competence
purposes . . . may be rare." Fitzgerald, 387 Wis. 2d 384, ¶13
(citing Sell, 539 U.S. at 179, 180).
¶16 Accordingly, the four-factor test announced in Sell
must be satisfied to meet the Constitution's high bar. Id. at
180-81. First, the court "must find that important governmental
interests are at stake." Id. at 180. Second, the court must
conclude "that involuntary medication will significantly further
those [] state interests," by rendering the defendant competent
to stand trial, but also that the drugs are "substantially
unlikely to have side effects that will interfere significantly
with the defendant's ability to assist counsel in conducting a
trial defense." Id. at 181. Third, the court must conclude
6
No. 2020AP819-CR
that the involuntary medication is "necessary to further those
interests" and that "any alternative, less intrusive treatments
are unlikely to achieve substantially the same results." Id.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.¶17 In Wisconsin, the court of appeals interpreted Sell as
requiring an individualized treatment plan. Green, 396 Wis. 2d
658, ¶38. We did not address this particular issue in our
review of Green, nor did we disturb it. Green, 401 Wis. 2d 542.
Accordingly, Wisconsin appears to continue to require that the
State provide an individual treatment plan when considering
whether the second, third, and fourth Sell factors have been
met. See Cook v. Cook, 208 Wis. 2d 166, 188, 560 N.W.2d 246(1997).
¶18 In addition, Wis. Stat. § 971.14 provides for pre-
trial competency procedures. In broad strokes, the statute
requires examination of the defendant, a report, a hearing, and
commitment, as well as outlining the process of discharge.
However, in Fitzgerald, we held § 971.14(3)(dm) is an
insufficient standard upon which to base forced psychotropic
medications. Fitzgerald, 387 Wis. 2d 384, ¶25.
¶19 We also reviewed each of the Sell factors in a way
that demonstrates medical knowledge is required to provide
relevant testimony for some of those factors. For example, in
regard to the second Sell factor, "administration of the drugs
is substantially likely to render the defendant competent to
7
No. 2020AP819-CR
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." Id., ¶27. In regard to
the fourth Sell factor, the circuit court must find that the
medication is "medically appropriate," i.e., "in the patient's
best medical interest in light of his medical condition." Id.,
¶29 (quoting Sell, 539 U.S. at 181).
C. Anderson's Commitment
¶20 Whether testimony from a psychologist satisfies Sell
is a question we have not addressed. Anderson brings this
question to us squarely, as the circuit court ordered him to be
involuntarily medicated based on the testimony of Dr. Collins, a
psychologist. He objected at the circuit court, claiming that
the testimony of a psychiatrist was necessary, and he objected
here for the same reason.
¶21 In my view, a psychologist's testimony, while relevant
to whether a defendant is incompetent to proceed to trial, is
not sufficient to provide relevant testimony on at least the
second and fourth Sell factors. A medical doctor's testimony is
necessary, i.e., a psychiatrist's testimony is needed to meet
the standards in the second and fourth Sell factors.
¶22 By declining to address Anderson's question regarding
whether a psychologist is qualified to give testimony required
by at least some of the Sell factors, this court shirks its duty
to the parties and the public to declare what the law requires.
We also disserve those closest to the mentally ill, those who
seek help before an ill individual becomes more dangerous.
8
No. 2020AP819-CR
Today is another example of this court's increasing indifference
to the obligations imposed upon the Wisconsin Supreme Court as
an institution. I dissent because I would fulfill our
obligation in a deeply complicated legal terrain and of
incredible personal significance to those seeking guidance from
this court.
¶23 Instead, the court chooses simply to vacate Anderson's
involuntary medication order. A curious exercise, as the
circuit court stayed it April 16, 2020. In addition, as the
State informed this court in May 2022:
According to CCAP, on August 14, 2020, the
circuit court entered an Order of Conversion to Civil
Commitment Proceedings [u]nder Wis. Stat.
§ 971.14(6)(b). Pursuant to that statute, a court
that discharges a defendant from pretrial competency
commitment 'may order that the defendant be taken
immediately into custody by a law enforcement official
and promptly delivered to a facility' for purposes of
Chapter 51 or 55 proceedings. . . . No action has
been taken on the State's prosecution since that time.
Section 971.14(6)(a) establishes the requirements for
proceedings pursuant to paragraph b, and states, "If the court
determines that it is unlikely that the defendant will become
competent within the remaining commitment period, it shall
discharge the defendant from the commitment and release him or
her, except as provided in par. (b)."
¶24 Wisconsin Stat. § 971.14(6)(b) further provides,
"Thereafter, detention of the defendant shall be governed by
s. 51.15, 51.45(11), or 55.135, as appropriate." Accordingly,
Anderson was discharged from the ch. 971 commitment and the
involuntary medication order he asked us to review. Any
9
No. 2020AP819-CR
subsequent civil commitment or involuntary medication order to
which Anderson may currently be subject is not part of the
record.
D. Choosing to Ignore This Court's Obligation
¶25 Lastly, I address this court's per curiam decision.
The court states, "In its briefing and arguments to this court,
the State conceded that 'it failed to meet its burden under
Sell,' at Anderson's competency hearing, and the circuit court
had therefore erred when it ordered involuntary medication."
That may be so, but the State made this concession in the very
letter briefing upon which this court ordered full briefing and
argument.
¶26 In May 2022, the State informed this court it
"agree[d] with Anderson that the court of appeals here erred by
not applying Green when determining whether the State proved the
Sell factors." There was nothing new this court could have
learned about the State's position from full briefing if the
court intended to decide the case on the State's concession, as
it does today. But, by granting Anderson's petition for review
with the issue "Did the involuntary medication order violate due
process because the state failed to meet its burden to prove the
second, third, and fourth Sell factors by clear and convincing
evidence?" and ordering briefing, the parties likely understood
an issue on review would be one of testimonial qualifications or
of evidentiary sufficiency.
¶27 Anderson's briefing focused on the sufficiency of the
State's evidence, as he argued testimony from a licensed
10
No. 2020AP819-CR
physician was required to meet Sell. Why now has the court
refused to address at least this question? It is a recurring
issue in commitment cases.
¶28 I am deeply troubled by this court's increasing
reluctance to fulfill its obligation as a court of law-
declaration. There are circuit courts serving all 72 counties
in this state. Parties may exercise appellate rights in the
courts of appeal, whose "primary function is error correcting."
Cook, 208 Wis. 2d at 188. Wisconsin's four courts of appeal
"function as a single court." In re Court of Appeals, 82
Wis. 2d 369, 371, 263 N.W.2d 149 (1978).
¶29 But the Supreme Court is the only court in Wisconsin
primarily tasked with "law defining." Cook, 208 Wis. 2d at 189.
This is the only court with the purpose of "oversee[ing] and
implement[ing] the statewide development of the law," and the
"only state court with the power to overrule, modify, or
withdraw language from a previous supreme court case." Id.¶30 Today, this court elects to do nothing despite the
awesome responsibility——the obligation——to oversee and implement
law declaration in Wisconsin. I regret that the parties'
efforts to inform us of the legal issues presented fell on
inattentive ears and that they have received no thoughtful
response from this court.
III. CONCLUSION
¶31 Today this court disregards its obligation to declare
the law. Instead, it conveniently sidesteps the significant
legal questions parties brought to us to decide and we accepted
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No. 2020AP819-CR
when we granted Anderson's petition for review. Because I would
decide at least whether a psychiatrist is necessary to give an
opinion on medicines that are sufficient to address Anderson's
mental illness, I respectfully dissent from this court's non-
decision decision.
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No. 2020AP819-CR
1