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SCOW U-turns, eliminates automatic stay for involuntary medication orders

State v. Joseph G. Green, 2022 WI 30, 5/13/22, limiting in part and affirming in part, a published court of appeals decision; case activity (including briefs)

Section 971.14(5)(a)1 provides that a defendant’s commitment for treatment to competency cannot exceed 12 months or his maximum sentence, whichever is less. So the State argued that if a defendant appeals an involuntary medication order, this period must be tolled, otherwise the appeal time will consume the commitment period. SCOW unanimously rejects that argument. Unfortunately, a majority then “limits” State v. Scott‘s automatic stay of involuntary med orders to those entered during postconviction proceedings. In truth, SCOW eliminated the automatic stay.

The length of time that a defendant may be committed for treatment to competency is limited by 14th Amendment due process. The defendant cannot be held more than a “reasonable period” of time to determine whether he will become competent in the foreseeable future. Jackson v. Indiana, 406 U.S. 715, 738 (1972).

SCOW and the legislature determined the “reasonable period” to be the lesser of 12 months or the maximum sentence the defendant faces. Wis. Stat §971.14(5)(a); State ex rel. Deisinger v. Treffert, 85 Wis. 2d 257, 270 N.W.2d 402 (1978). Opinion, ¶47. If this period were tolled while the defendant appealed, he could be committed without treatment for years. Based on the plain language of the statute and the 14th Amendment limits on the commitment period, SCOW unanimously rejected the State’s tolling argument. Opinion, ¶47. 

That was the State’s sole issue for review, so this appeal should have ended there with a defense win. Instead, after oral argument, SCOW ordered the parties to brief an issue the State didn’t raise–whether Scott‘s automatic stay provision should be limited to involuntary medication orders entered during postconviction proceedings.

Four years ago, SCOW unanimously held that if medication orders to restore competency aren’t automatically stayed pending appeal, the defendant’s fundamental liberty interest in avoiding unwanted antipsychotic medication is rendered a nullity. State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141. The State has repeatedly conceded that the automatic stay applies at the trial and appeal stages.

SCOW’s order for briefing made the fate of Scott‘s automatic stay clear. SCOW planned to dump it. The majority (Roggensack, Ziegler, R.G. Bradley and Hagedorn) says that it “limited” the stay, but it effectively eliminated the stay.

That’s because SCOW has never once approved an involuntary medication order to render a defendant competent for postconviction and appellate proceedings. Instead, it holds that when a defendant is incompetent during postconviction proceedings circuit courts should follow the procedures in State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994). According to Scott, ¶¶23-24, if circuit courts follow Debra A.E., orders for involuntary medication at the appeal stage will be “unnecessary” or “rare.” Who needs an automatic stay for an order that is supposed to be “unnecessary?”

In Scott, the State itself acknowledged that involuntary medication is not necessary at the postconviction stage. Only one case in the entire country has authorized involuntary meds during an appeal, and it was a death penalty case.  (Response Brief at 24)(citing Pennsylvania v. Sam, 952 A.2d 565 (Pa. 2008)). Wisconsin doesn’t have the death penalty.

So why did the majority eliminate the automatic stay at the trial level? As noted above, one reason is that it didn’t realize the stay would chew up the commitment period for treatment to competency. Scott.” Opinion, ¶34.

A second reason is that at the pretrial stage of a case a victim now has the right to “justice and due process,” as well as a “timely disposition of the case, free from unreasonable delay.” Wis. Const. art. I, § 9m(2)(d).  Opinion, ¶31. Translation: Marsy’s law went into effect.

Let’s flesh that out. The State medicated Green with Haldol, a first-generation antipsychotic known for nasty side effects. The examiner admitted that the drug causes sedation, slurred speech, tremors, parkinsonism, cardiac problems, diabetes, and so forth. The risk was anywhere from 5 to 8 percent on the low end to 25 to 35% on the high end. COA Opinion, ¶¶23-24. So SCOW is saying that the victim’s right to speedy justice (it seems to be presuming a conviction) outweighs the defendant’s right to a stay of government-induced sedation, parkinsonism, diabetes, and so forth. (And, no, Karofsky did not join the majority on this point).

So what should the defense do? First, take full advantage of the court of appeals’ published decision in Green. It recognized that the State’s burden in involuntary medication proceedings is really high. See our post here. It was correct to do so. SCOTUS held that a trial court order for involuntary meds to restore a defendant’s competence should be “rare.” Sell v.United States, 539 U.S. 166, 180 (2003). SCOW didn’t (and couldn’t) overturn Sell. If the circuit court denies the State an involuntary medication order, the defendant won’t need a stay.

Second, when heading into an involuntary medication proceeding, defense lawyers should be prepared to ask for a stay in the event they lose. To obtain a stay, the defense has to show that (1) it is likely to succeed on the merits of its appeal; (2) a stay will not cause substantial harm to other interested parties (i.e. the State or victims); (3) a stay won’t harm the public interest; and (4) without a stay the defendant will suffer irreparable harm. State v. Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W. 225 (1995). The defense should win (4) because Scott established that involuntary medication does irreparably harm the defendant, and that remains the law.

Finally, be aware that the majority opinion contains significant misstatements of law that will surely confuse parties and courts going forward.  The majority opinion ¶24 talks at length about the interests of the State, the victim, and the community in medicating a defendant at the postconviction stage and cites Scott, ¶44 for this rationale. But Scott does not discuss these matters at all. Oops.

The majority cites Sell for the proposition that “postconviction circumstances that call for governmental involuntary medication are ‘rare'” Opinion ¶29 (citing Sell, at 180). (Emphasis supplied). That page of Sell actually says the government may medicate a defendant “solely for trial competence purposes in certain instances. But those instances may be rare.” (Emphasis supplied). Sell doesn’t mention postconviction proceedings. Double oops.

And finally, a blooper the court of appeals is sure to love, the majority says: “Going forward, in pretrial proceedings, a defendant seeking to stay an involuntary medication order pending appeal is able to apply for a stay and the court of appeals, in the exercise of its discretion, it shall explain” the rationale for its decision. Opinion, ¶36 n. 13. Rule 809.12 directs parties to file a motion for stay in the circuit court. But the majority just authorized defendants to file motions for stay of involuntary meds in the court of appeals.  Triple oops.

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