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SCOW decides not to decide rules for involuntary medication to competency

State v. Wilson P. Anderson, 2023 WI 44, 6/2/23, summarily reversing an unpublished court of appeals decision; 2020AP819; case activity (including briefs)

As we’ve noted previously, the court of appeals (in the person of a single judge in District 1) decided this case shortly after the same court (by a three-judge panel of District 4) decided State v. Green, 2021 WI App 18, 396 Wis. 2d 658, 957 N.W.2d 583. Green reversed an order that a criminal defendant be involuntarily medicated to competency, relying on and fleshing out the factors established by Sell v. United States, 539 U.S. 166 (2003). In particular, Green required the state to file, for the court’s approval, an individualized treatment plan specifying medications and doses. (Green was then taken up by the supreme court, but its decision addressed other matters, leaving the court of appeals’ reading of Sell intact.) The D1 judge in Wilson’s case didn’t follow Green (or, as the state now concedes, Sell itself) and okayed a med order prepared by a psychologist with a generic recommendation that Wilson be medicated. The supreme court granted Wilson’s petition, and the state’s litigation position changed: it conceded in SCOW that it hadn’t met its burden under Sell. In briefing and argument, the only dispute between the parties was whether the testimony of a medical doctor is always necessary to satisfy Sell‘s requirements.

That this legal dispute was all that remained–that is, that the state conceded the court of appeals decision was wrong–was clear even before briefing; the supreme court asked the parties for their input after it decided Green, and they told them what the issue was. The court then accepted briefs, conducted oral argument, and … summarily reversed the court of appeals based on the state’s preexisting concession. “What was all that effort for?” asks Justice Roggensack in her separate writing (it’s labeled a dissent but could also be called a concurrence, since she agrees with the mandate of reversal). For what it’s worth, the soon-to-be-retired justice thinks a medical doctor must give evidence for a med order to be valid; we don’t know what any of the other justices think, though. We’ll have to wait for the next case presenting this issue.

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