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SCOW establishes how to appeal “involuntary treatment to competency” orders; orders lower courts to automatically stay involuntary med orders

State v. Andre L. Scott, 2018 WI 74, 6/20/18, reversing a circuit court order on bypass, case activity (including briefs).

Ruling 7-0 for the defendant, SCOW reversed a circuit court order requiring involuntary treatment to competency for postconviction proceedings because the circuit court failed to follow State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994). It also established a process for appealing an order finding a defendant incompetent and requiring involuntary treatment to competency. And–very importantly–it held that lower courts must automatically stay involuntary medication orders pending appeal. Note that aspects of this decision apply to pre-trial and trial competency proceedings as well as postconviction competency proceedings.

During Scott’s postconviction proceedings, his lawyer raised competency. The circuit court declared him incompetent and, over Scott’s objection, ordered that he be medicated to competency.  The circuit court granted a 30-day stay so that Scott could appeal. Without going into all of the details, the court of appeals denied Scott a stay without explaining why. He was immediately medicated against his will.

Procedure for all competency proceedings. SCOW held that a competency proceeding is not part of a defendant’s criminal proceeding; it is “special proceeding” and the resulting order is immediately appealable as a matter of right. Thus, it is not necessary to file a petition for leave to appeal or wait for the conviction and sentence to challenge an order determining competency and mandating either treatment or medication to restore competency. Opinion ¶34.

In addition, SCOW announced that “involuntary medication orders are subject to an automatic stay pending appeal” because if they weren’t the defendant’s constitutional liberty interest in avoiding unwanted psychotropic drugs would be rendered a nullity. Opinion ¶44 (citing Sell v. United States, 539 U.S. 166, 177 (2003)).  The State may move to lift the stay but it must: (1) make a strong showing that it is likely to succeed on the merits of the appeal; (2) show that the defendant will not suffer irreparable harm if the stay is lifted; (3) show that no substantial harm will come to other interested parties if the stay is lifted; and (4) show that lifting the stay will not harm the public interest.

Finally, the court deciding the State’s motion to lift an automatic stay must explain its exercise of discretion. This applies to the circuit court and the court of appeals. Opinion ¶¶47-48. In fact, SCOW held that going forward the court of appeals must explain its discretionary decision-making. Its failure to do so is an erroneous exercise of discretion. Opinion ¶¶40-41.

Scott also argued that §971.14 is unconstitutional on its face because it allows circuit courts to order involuntary medication without complying with Sell, thus violating the defendant’s right to a substantive due process. Under Sell, the circuit court cannot order involuntary treatment to competency unless the State proves, and the circuit court finds, either that: (a) the defendant is dangerous or (b) the State has satisfied the 4 “Sell factors.” To really understand what the State’s burden of proof, it is necessary to read Sell. Briefly, the State must prove that involuntary treatment or medication (1) is necessary to further an important government interest; (2) will significantly further that interest; (3) is necessary to further those interests (i.e. that they can’t be achieved through alternatives); and (4) the proposed drugs are medically appropriate. Sell at 180-181.

Procedure for postconviction competency proceedings. With respect to Scott, SCOW held that the circuit court jumped the gun on ordering meds. Debrae A.E. prescribed the process that circuit courts should follow when a defendant’s competency is raised postconviction. And it holds that the instances when involuntary meds may be ordered will be “rare.” Opinion ¶23. The correct process is:

  • As soon as there is a good faith doubt about the defendant’s competency to seek postconviction relief, defense counsel should promptly advise the appropriate court of this doubt (on the record) and move for a ruling on competency.
  • The court shall honor defense counsel’s request when there is reason to doubt a defendant’s competency.
  • To determine competency, the court may order an examination and hold a hearing.
  • The test for competency during postconviction proceedings is whether the defendant “is unable to assist counsel or to make decisions committed by law to the defendant with a reasonable degree of rational understanding.”
  • When the issues in a postconviction proceeding rest on the record in the circuit court and involve no risk to the defendant, defense counsel can proceed with postconviction relief on a defendant’s behalf even if the defendant is incompetent.
  • When the issues in a postconviction proceeding involve some risk to the defendant, these issues require the defendant’s decision-making because whether to file an appeal and the objectives to pursue are decisions committed by law to the defendant.
  • If the defendant’s assistance is needed for decision-making and the defendant is likely to attain competency in the near future, a circuit court may grant a continuance or an enlargement of time for filing the necessary notices or motions for postconviction relief or may appoint a guardian to make the decisions that the law requires the defendant to make.
  • If the defendant’s assistance is needed to develop a factual foundation and the defendant is not likely to attain competency in the near future, these issues can be raised at a later proceeding in a § 974.06 motion if the defendant regains competency. Opinion ¶25.




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