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SCOW splits 3-3 over how to trigger an automatic stay of an involuntary medication order pending appeal

State ex rel. Fitzgerald v. Milw. County Circuit Court, 2018AP1214-W, 2019 WI 69, 6/13/19, case activity

A defendant is entitled to an automatic stay of an involuntary medication pending appeal, otherwise his liberty interest in avoiding unwanted antipsychotic medications is rendered a nullity. State v. Scott, 2018 WI 74, __Wis. 2d __, 912 N.W.2d 14. But what triggers the automatic stay–the entry of the involuntary medication order itself or the filing of the notice of appeal? SCOW split 3-3 on this issue (Abrahamson did not participate), so the court of appeals decision stands.

The court of appeals held that the defendant must file a notice of appeal to trigger the stay. The decision is not published, and it isn’t binding. For now, all we know is that 3 justices think the court of appeals is right, and 3 justices think it is wrong.

Here’s the problem. Mandatory Circuit Court Form CR-206 includes DHS on its distribution list. Often a circuit court will fax that form order to DHS shortly after entering it. DHS can begin administering medication soon thereafter. So for clients who don’t want antipsychotic medication, defense counsel should ensure that the automatic stay is in place.

Here are two options. (There may be others.) At the conclusion of the involuntary medication hearing, cite Scott, tell the circuit court that SCOW hasn’t yet decided the mechanism for triggering an automatic stay pending, and ask it to write on Paragraph 9 of CR-206 that “the administration of involuntary medication is stayed until further order of the court.”  If that doesn’t work, immediately file a notice of appeal. Click here for a sample. This will trigger an automatic stay and buy time for reflection and an attorney/client conversation about the best course of action. Either way, immediately notify the SPD of the involuntary medication order because additional steps must be taken to preserve your client’s appellate rights.

If circuit courts apply Sell v. United States, 539 U.S. 166 (2003) and State v. Fitzgerald, correctly (click here for proper application), there should be few involuntary medication orders to appeal.

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