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SCOW to clarify procedure for “automatic stay” of involuntary administration of antipsychotic medications

State ex rel. Raytrell K. Fitzgerald v. Milwaukee County Circuit Court, 2018AP1214-W, petition for review of an Order Denying Supervisory Relief granted, 10/10/18, affirmed by an equally divided court, 2019 WI 69; case activity

Issue: State v. Scott, 2018 WI 74, ¶43, 382 Wis. 2d 476, 914 N.W.2d 141 held that “involuntary medication orders are subject to an automatic stay pending appeal.”  Which event triggers the automatic stay—the entry of the involuntary medication order or the filing of a notice of appeal? Either way, must the circuit court enter an “automatic stay” order?

Defendants have a significant, constitutionally-protected liberty interest in avoiding the unwanted administration of antipsychotic drugs. Scott, ¶44 (citing Sell v. United States, 539 U.S. 166 (2003) and Washington v. Harper, 494 U.S. 210 (1990)). Thus, last term in Scott, SCOW held that when a circuit court orders the involuntary administration of antipsychotic medications to render a defendant competent for trial, the order is “subject to an automatic stay pending appeal.” Scott, ¶43. The State bears the burden to move to lift the stay and show 4 factors. See Scott, ¶47.  The circuit courts seem confused by this procedure. Some have required defendants to move for an automatic stay (which means the stay isn’t automatic). Some have acknowledged the automatic stay but then lifted it in the next breath. In one case, the circuit court ordered involuntary meds, the defendant notified the court of the automatic stay, but then Mendota began medicating him before the State even moved to lift the stay.

In Fitzgerald’s case, the court of appeals held that the defendant doesn’t get an automatic stay until he files a notice of appeal. That forces defense lawyers to arrive at competency hearings armed with a notice of appeal to file immediately upon losing. Otherwise, involuntary medication can begin and render the appeal pointless.

What a mess. Hopefully SCOW will clarify the process so that the automatic stay works as Scott intended–as a mechanism for ensuring that a defendant has the right to a meaningful appeal of an involuntary medication order.

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  • Laurie Osberg October 11, 2018, 7:43 am


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