2022 WI 30
SUPREME COURT OF WISCONSIN CASE NO.: 2020AP298-CR
COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Joseph G. Green, Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 396 Wis. 2d 658,957 N.W.2d 583 PDC No: 2021 WI App 18 - Published (2021)
OPINION FILED: May 13, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: December 13, 2021
SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: Valerie Bailey-Rihn
JUSTICES: ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined, and in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined with respect to Part II.D., and in which DALLET, J., joined with respect to Part II.D. and ¶¶3 and 53. ANN WALSH BRADLEY, J., filed an opinion concurring in part and dissenting in part, in which DALLET and KAROFSKY, JJ., joined. NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs filed by Kara L. Janson, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Kara L. Janson.
For the defendant-appellant, there were briefs filed by Kathilynne A. Grotelueschen, assistant state public defender. There was an oral argument by Kathilynne A. Grotelueschen. 2022 WI 30 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP298-CR (L.C. No. 2019CF3109)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED v. MAY 13, 2022 Joseph G. Green, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant.
ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined, and in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined with respect to Part II.D., and in which DALLET, J., joined with respect to Part II.D. and ¶¶3 and 53. ANN WALSH BRADLEY, J., filed an opinion concurring in part and dissenting in part, in which DALLET and KAROFSKY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Limited in
part; affirmed in part.
¶1 PATIENCE DRAKE ROGGENSACK, J. Joseph G. Green was
charged with first-degree intentional homicide, and was determined
to be incompetent to stand trial. He was committed pursuant to
Wis. Stat. § 971.14 (2017-18)1 to administer involuntary
1 All references to the Wisconsin Statutes are to the 2017- No. 2020AP298-CR
medication. Green appealed the order, and according to our
decision in State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d
141, the order for involuntary medication was stayed
automatically. We review the court of appeals' opinion2 that
reversed the circuit court's3 decision granting the State's
involuntary medication order, lifting the stay of involuntary
medication, and tolling the statutory time limit to bring a
defendant to competence.
¶2 We conclude that because the State's significant
pretrial interests in bringing a defendant who meets each one of
the factors set out in Sell v. United States4 to competency for
trial and providing timely justice to victims outweigh upholding
a defendant's liberty interest in refusing involuntary medication
at the pretrial stage of criminal proceedings, Scott's automatic
stay of involuntary medication orders pending appeal does not apply
to pretrial proceedings. Therefore, we employ our supervisory
authority to limit our decision in Scott on which the court of
appeals relied.5
2018 version unless otherwise indicated. 2 State v. Green, 2021 WI App 18, 396 Wis. 2d 658, 957 N.W.2d 583.
The Honorable Valerie Bailey-Rihn of Dane County Circuit 3
Court presided. 4 Sell v. United States, 539 U.S. 166, 179 (2003).
The court of appeals concluded that the State did not meet 5
its burden in regard to the second and fourth Sell factors that we adopted and required in State v. Fitzgerald, 2019 WI 69, ¶2, 387 Wis. 2d 384, 929 N.W.2d 165, unless dangerousness to self or others 2 No. 2020AP298-CR
¶3 We also conclude that Wis. Stat. § 971.14(5)(a)1. is not
subject to tolling in a pretrial context. Accordingly, we affirm
the court of appeals decision in part.
I. BACKGROUND
¶4 The facts in this case are undisputed. On December 27,
2019, the State filed a criminal complaint charging Green with
first-degree intentional homicide with use of a dangerous weapon.
Pretrial, defense counsel raised reason to doubt Green's
competency to proceed. The circuit court ordered a competency
examination, which was completed by Dr. Craig Schoenecker and
filed with the court. At the competency hearing, Dr. Schoenecker
testified that Green was not competent but could be restored to
competency through anti-psychotic-type medication within the 12-
month statutory timeframe. Dr. Schoenecker also testified that
the medication was medically appropriate, substantially unlikely
to have side effects that would undermine a fair trial, and that
other, less intrusive, treatments were unlikely to restore Green
to competency. ¶5 After the hearing, the circuit court found Green
incompetent. Accordingly, the court entered an order of commitment
for treatment with the involuntary administration of medication.
is at issue.
Because Green received alternate treatment; pled guilty to a lesser charge; was found not guilty by reason of mental disease or defect and is receiving care appropriate to his condition, these concerns are no longer relevant to this review. No party raised mootness in their briefs to us, therefore, we do not address the mootness doctrine.
3 No. 2020AP298-CR
Following this determination, Green appealed and filed an
emergency motion for stay of the involuntary medication order
pending appeal, which was automatically granted by the circuit
court pursuant to our decision in Scott.
¶6 The State responded with motions to lift the automatic
stay and to toll the statutory time period to bring a defendant to
competence, both of which were granted by the circuit court. Green
appealed. He moved for relief pending appeal, which included
reinstatement of the temporary stay. The court of appeals reversed
the circuit court's involuntary medication order and its order
lifting the automatic stay of involuntary medication. State v.
Green, 2021 WI App 18, ¶2, 396 Wis. 2d 658, 957 N.W.2d 583. In
addition, the court of appeals determined that the circuit court
lacked authority to toll the statutory time period to bring Green
to competency. Id., ¶58. We granted the State's petition for
review.
¶7 Upon granting review, the parties submitted briefs
addressing the circuit court's ability to toll the limits on the maximum length of commitment for competency restoration. However,
following oral argument, additional briefing was ordered to answer
whether the automatic stay required by Scott applied to pretrial
proceedings. We determine: (1) whether Scott's automatic stay
applies to pretrial competency proceedings and (2) whether Wis.
Stat. § 971.14(5)(a)1. permits tolling the 12-month limitation
provided to restore a defendant to competency.
4 No. 2020AP298-CR
II. DISCUSSION
A. Standard of Review
¶8 In the matter before us, we review the exercise of our
superintending and administrative authority over Wisconsin courts
as reasoned in Scott. Scott, 382 Wis. 2d 476, ¶43. In so doing,
we review our discretionary exercise of a constitutionally granted
power. Wis. Const. art. VII, § 3. This review involves not just
the declared source of that power, but also the rationale we
employed for exercising it.
¶9 We also review the court of appeals' interpretation and
application of Wis. Stat. § 971.14(5)(a)1. Statutory
interpretation and application present questions of law for our
independent review. Wisconsin Legislature v. Palm, 2020 WI 42,
¶14, 391 Wis. 2d 497, 942 N.W.2d 900.
B. Competency Proceedings
¶10 This case arises out of an order of commitment for the
provision of involuntary medication. Therefore, some background
about the statutory foundation for and the judicial interpretations of such orders may be helpful to the reader.
¶11 We begin with the statutory foundation for commitment
proceedings in criminal prosecutions, Wis. Stat. § 971.13(1),
which provides:
No person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.
5 No. 2020AP298-CR
§ 971.13(1). Section 971.13(1) is a codification of the due
process requirement that a defendant be able to "understand" and
"assist" when evaluating a defendant's competency to stand trial.
It "considers whether the defendant: (1) 'has sufficient present
ability to consult' with his or her lawyer 'with a reasonable
degree of rational understanding;' and (2) 'has a rational as well
as factual understanding of the proceedings.'" State v. Smith,
2016 WI 23, ¶35, 367 Wis. 2d 483, 878 N.W.2d 135 (quoting State v.
Byrge, 2000 WI 101, ¶27, 237 Wis. 2d 197, 614 N.W.2d 477). "This
two-part 'understand-and-assist' test constitutes the core of the
competency-to-stand-trial analysis." Id., ¶28.
¶12 Furthermore, "[w]henever there is a reason to doubt the
competency of a defendant to proceed," the circuit court is
directed to order an examination of the defendant under Wis. Stat.
§ 971.14(1r)(a) and (2). State v. Garfoot, 207 Wis. 2d 214, 221,
558 N.W.2d 626 (1997). Upon completion of the examination, the
examiner submits a report "'regarding the defendant's present
mental capacity to understand the proceedings and assist in his or her defense.'" Id. (quoting § 971.14(3)(c)). Importantly, the
inquiry whether a defendant is competent to stand trial is a
judicial, not a medical, determination. Byrge, 237 Wis. 2d 197,
¶31. "Although a defendant may have a history of psychiatric
illness, a medical condition does not necessarily render the
defendant incompetent to stand trial." Id. (quoting State ex rel.
Haskins v. Cnty. Ct. of Dodge Cnty., 62 Wis. 2d 250, 264-65, 214
N.W.2d 575 (1974)).
6 No. 2020AP298-CR
¶13 When a defendant's competency is contested, the court
shall hold an evidentiary hearing. Wis. Stat. § 971.14(4)(b).
The circuit court should not make a competency determination simply
"on the basis of rubber stamping the report of a psychiatrist."
Haskins, 62 Wis. 2d at 264. Rather, the circuit court must "weigh
evidence that the defendant is competent against evidence that he
or she is not." Garfoot, 207 Wis. 2d at 222.
¶14 If a defendant is found to be incompetent, a court may
allow the government to confine and involuntarily medicate the
defendant if certain criteria are met. In Sell v. United States,
the United States Supreme Court reasoned that:
[T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial- related interests. Sell v. United States, 539 U.S. 166, 179 (2003); see also Riggins
v. Nevada, 504 U.S. 127, 139 (1992) (citing Washington v. Harper,
494 U.S. 210 (1990)). Although permitted, the Supreme Court in
Sell explained that administration of drugs solely to return
competence may be rare. Sell, 539 U.S. at 180.
¶15 The Supreme Court set out four factors, often referred
to as the "Sell factors," as the standard for determining whether
involuntary medication is constitutionally permissible.6 First,
6 Two years ago, in Fitzgerald, we adopted the Sell factors and concluded that ordering involuntary medication without first 7 No. 2020AP298-CR
"a court must find that important governmental interests are at
stake. The Government's interest in bringing to trial an
individual accused of a serious crime is important. That is so
whether the offense is a serious crime against the person or a
serious crime against property." Id. at 180 (emphasis in
original). Second, the court must conclude that "involuntary
medication will significantly further those concomitant state
interests. It must find that administration of the drugs is
substantially likely to render the defendant competent to stand
trial." Id. at 181 (emphasis in original). Yet, "[a]t the same
time, it must find that administration of the drugs is
substantially unlikely to have side effects that will interfere
significantly with the defendant's ability to assist counsel in
conducting a trial defense, thereby rendering the trial unfair."
Id.
¶16 Third, "the court must conclude that involuntary
medication is necessary to further those interests. The court
must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results." Id. (emphasis
in original). And finally, fourth, "the court must conclude that
administration of the drugs is medically appropriate, i.e., in the
patient's best medical interest in light of his medical condition."
Id. (emphasis in original).
complying with the Sell factors was unconstitutional. See Fitzgerald, 387 Wis. 2d 384, ¶32 (holding that Wis. Stat. § 971.14(3)(dm) and (4)(b) are unconstitutional unless the circuit court applies the Sell factors).
8 No. 2020AP298-CR
¶17 These factors encapsulate competing policy and
constitutional considerations at play when a court analyzes
whether the government shall be permitted to involuntarily
medicate a defendant in order to bring the defendant to competency
to stand trial. Under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, "individuals have 'a
significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs.'" State v. Fitzgerald,
2019 WI 69, ¶13, 387 Wis. 2d 384, 929 N.W.2d 165 (quoting Harper,
494 U.S. at 221). Alternately, the State has an important interest
in bringing an individual accused of a serious crime to trial.
Sell, 539 U.S. at 179. It was against the interplay of these
important, competing interests that we decided State v. Scott.
C. State v. Scott
1. Postconviction
¶18 Several years after being convicted, Andre Scott sought
to pursue postconviction relief. Scott, 382 Wis. 2d 476, ¶5.
Defense counsel requested a competency evaluation, and the circuit court held a competency hearing. Thereafter, the court ordered
that the defendant be involuntarily medicated to competency for
purposes of participating in postconviction proceedings. Id., ¶6.
We reviewed the circuit court's order for involuntary medication
to enable participation in postconviction proceedings. The
circuit court had found that Scott was not competent to proceed
with his postconviction motion for relief and was not competent to
refuse medication and treatment. Id.
9 No. 2020AP298-CR
¶19 We granted bypass and reversed the circuit court's
involuntary medication order because it had not followed the
procedures we set forth in State v. Debra A.E.7 Scott, 382 Wis. 2d
476, ¶8. Although the circuit court's decision in Scott was
reversed based on its failure to follow those procedures, we posed
and answered an additional question: "Should involuntary
medication or treatment orders be automatically stayed pending
appeal?" Id., ¶10.
¶20 In invoking our constitutional superintending authority,
we concluded that "involuntary medication orders are subject to an
automatic stay pending appeal." Id., ¶43. Our reasoning for the
decision was simple, "if involuntary medication orders are not
automatically stayed pending appeal, the defendant's 'significant'
constitutionally protected 'liberty interest' in 'avoiding the
unwanted administration of antipsychotic drugs' is rendered a
nullity." Id., ¶44 (quoting Sell, 539 U.S. at 177).
¶21 Furthermore, in order to give the State the opportunity
to lift the stay, we modified the legal standard set forth in State v. Gudenschwager, 191 Wis. 2d 431, 529 N.W.2d 225 (1995). Scott,
382 Wis. 2d 476, ¶45. On a motion to lift an automatic stay
pending appeal of an involuntary medication order, we concluded
that the State:
(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;
7 State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994).
10 No. 2020AP298-CR
(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 do no harm to the public interest. Id., ¶47. This presents a discretionary decision for the court of
appeals; therefore, we concluded that the court of appeals was
required to explain the reasoning underlying its decision. Id.,
¶48.
¶22 In the years following our decision in Scott,
experiences with its employment at differing points in criminal
proceedings require that we revisit our exercise of discretion in
regard to automatically staying involuntary medication orders
during an appeal of such orders. In our further discussion, we
examine whether our reasoning that supported Scott's automatic
stay pending appeal applies to appeals of involuntary medication
orders issued in a pretrial context.
¶23 We begin with Debra A.E. where we set out procedures for
managing postconviction relief of allegedly incompetent
defendants.8 The process established by Debra A.E. requires:
[D]efense counsel should proceed with postconviction relief on a defendant's behalf, even if the defendant is incompetent, when issues rest on the trial court record and involve no risk to the defendant.[9]
In Debra A.E., we concluded that Wis. Stat. § 971.14(1)(a) 8
(1991-92) did not apply to post-sentencing proceedings. Debra A.E., 188 Wis. 2d at 128 n.14. We note that § 971.14(1)(a) has been repealed and replaced with § 971.14(1r). The parties do not challenge whether competency determinations apply to postconviction proceedings. Accordingly, we do not address the statutory change further. 9 Id. at 130.
11 No. 2020AP298-CR
[A]fter sentencing, if state or defense counsel has a good faith doubt about a defendant's competency to seek postconviction relief, counsel should advise the appropriate court of this doubt on the record and move for a ruling on competency.[10]
Based on the tasks that may be required of defendants seeking postconviction relief, we conclude that a defendant is incompetent to pursue postconviction relief under sec 809.30 . . . when he or she is unable to assist counsel or to make decisions committed by law to the defendant with a reasonable degree of understanding.[11]
[If the defendant's assistance is needed for decision- making,] defense counsel can seek appointment of a temporary guardian when an incompetent defendant is incapable of making a decision that the law requires the defendant to make.[12] In Scott, we endorsed those procedures set out in Debra A.E.
Scott, 382 Wis. 2d 476, ¶25.
¶24 We explained that our purpose in creating those
procedures was to "fashion a process through which circuit courts
and counsel can manage the postconviction relief of alleged
incompetent defendants" while effectively administering the
judicial system. State v. Debra A.E., 188 Wis. 2d 111, 129, 523
N.W.2d 727 (1994). Further, because many postconviction
defendant-opportunities can be proceeded upon independently by
counsel, we concluded that postconviction proceedings do not
ordinarily need to "include a court order for treatment to restore
10 Id. at 131. 11 Id. at 126. 12 Id. at 130.
12 No. 2020AP298-CR
competency. Meaningful postconviction relief can be provided even
though a defendant is incompetent." Id. at 130.
¶25 When taken together, Debra A.E.'s procedures, affirmed
in Scott, show that competence has a different effect on a
defendant's interests at the postconviction stage of criminal
proceedings than competence has pretrial. Postconviction, a
defendant's liberty interest in refusing involuntary medication
remains high. Scott, 382 Wis. 2d 476, ¶44. However, the State's
interest in involuntarily medicating a defendant is significantly
less at the postconviction stage when compared to pretrial. This
is so, in part, because, although victim and community interests
remain considerable at the postconviction stage, the State has
already employed a significant portion of the criminal justice
process to try to achieve justice for victims and the community as
a whole. Furthermore, the State's dual interest in protecting a
defendant's right to appeal and promoting the finality of the
conviction can be accomplished despite an incompetent defendant.
13 No. 2020AP298-CR
2. Pretrial
¶26 Pretrial, the effects of a defendant's lack of
competence are quite different. Under our common law system, it
has long been accepted that "[u]nless a defendant is competent,
the State cannot put him on trial." Riggins, 504 U.S. at 139
(Kennedy, J., concurring); see also State v. Johnson, 133 Wis. 2d
207, 223, 395 N.W.2d 176, 184 (1986) ("We start with the
proposition that an incompetent [defendant] may not be subjected
to a trial.").
¶27 The prohibition against "trying the incompetent
defendant was well established by the time Hale and Blackstone
wrote their famous commentaries." Cooper v. Oklahoma, 517 U.S.
348, 356 (1996) (quoting 4 W. Blackstone, Commentaries *24 ("If a
man in his sound memory commits a capital offence . . . and if,
after he has pleaded, the prisoner becomes mad, he shall not be
tried: for how can he make his defence?")). In short, the
requirement that the defendant be competent to stand trial is
"rudimentary," Riggins, 504 U.S. at 139 (Kennedy, J., concurring), and "fundamental to an adversary system of justice." Drope v.
Missouri, 420 U.S. 162, 172 (1975).
¶28 Regarding involuntary medication administered solely to
bring a defendant to competency for trial, the United States
Supreme Court has held that a defendant "charged by a State with
a criminal offense who is committed solely on account of his
incapacity to proceed to trial cannot be held more than the
reasonable period of time necessary to determine whether there is
14 No. 2020AP298-CR
a substantial probability that he will attain that capacity in the
foreseeable future." Jackson v. Indiana, 406 U.S. 715, 738 (1972).
¶29 In Sell, the Supreme Court set forth criteria for
determining when the government may be allowed to involuntarily
medicate a defendant for the purpose of making the defendant
competent to stand trial. Sell, 539 U.S. at 180-81. In short
summation, a court must find that: (1) there are important
government interests at stake, including bringing a defendant to
trial for a serious crime; (2) involuntary medication will
significantly further those state interests; (3) involuntary
medication is substantially likely to render the defendant
competent to stand trial; and (4) administration of the drugs is
in the patient's best medical interest in light of his medical
condition. Id. However, postconviction circumstances that call
for governmental involuntary medication are "rare." Id. at 180.
¶30 As with Debra A.E.'s concerns in a postconviction
context, significant, competing interests underlie our
consideration of the involuntary administration of medication in a pretrial context. The defendant holds the same substantial
liberty interest in refusing involuntary medication, regardless of
the stage of proceedings. Scott, 382 Wis. 2d 476, ¶44. Once a
defendant is subject to involuntary medication, irreparable harm
could be done. Sell, 539 U.S. at 177.
¶31 On the other hand, the State has a significant interest
in bringing a defendant to trial. Id. at 180. The State's power
"to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to social justice and peace." 15 No. 2020AP298-CR
Illinois v. Allen, 397 U.S. 337, 347 (1970) (Brennan, J.,
concurring). Further, unlike postconviction proceedings, in
pretrial proceedings, the State has yet to employ a significant
portion of the criminal justice process to try to achieve justice
and uphold the considerable victim and community interests at
stake. For example, victims are guaranteed a 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).
And while treatment to competency is not always necessary for
postconviction proceedings, see Debra A.E., 188 Wis. 2d at 131,
the State is required to bring a defendant to competency before a
defendant can be tried. Wis. Stat. § 971.13(1).
¶32 Pretrial proceedings fall under the auspice of Wis.
Stat. §§ 971.13 and 971.14. The terms of § 971.14(5)(a)1. limit
the treatment time for an incompetent defendant to "a period not
to exceed 12 months, or the maximum sentence specified for the
most serious offense with which the defendant is charged, whichever
is less." As soon as a defendant is in custody for treatment, the statutory time during which he or she may be held before trial
begins. § 971.14(5)(a)1.; see also Jackson, 406 U.S. at 738
(explaining due process concerns).
¶33 Stated otherwise, while Debra A.E. allows defense
counsel to enlarge time periods for continuances in postconviction
competency proceedings, Debra A.E., 188 Wis. 2d at 134, statutory
and constitutional law principles reject unlimited continuances in
pretrial proceedings. If the State is unsuccessful at restoring competency for trial, the likelihood of which is increased if 16 No. 2020AP298-CR
treatment is prevented by the automatic stay of Scott, a defendant
must be discharged from commitment and released unless civil
commitment proceedings are commenced pursuant to Wis. Stat. ch.
51. See Wis. Stat. § 971.14(6)(a)−(b).
¶34 Since our decision in Scott, the State has been trapped
on both ends of the pretrial competency process. On one hand,
Wis. Stat. § 971.14(5)(a)1. permits a defendant to be held for 12
months to be brought to competence. On the other hand, Scott's
automatic stay of the involuntary medication order keeps the State
from starting the treatment that has been ordered by a court.
While the State was given some leeway in the form of a modified
Gudenschwager test, see Scott, 382 Wis. 2d 476, ¶47, this is a
high burden, and when employed, can use up the entire 12-month
maximum commitment period that is permitted for treatment. And,
if the State is not able to satisfy this Gudenschwager test and
the time during which treatment can be required expires, the State
is without recourse for prosecution. This is an unexpected
consequence of the automatic stay that we created in Scott. ¶35 Accordingly, even though the defendant has a constant
liberty interest in refusing involuntary medication, the State
cannot prosecute an incompetent defendant. Wis. Stat.
§ 971.13(1). The State also has a constitutional duty to provide
timely justice to crime victims by bringing competent defendants
to trial. Wis. Const. art. I, § 9m(2)(d). Those State interests
currently are being frustrated by Scott's requirement to impose an
automatic stay on treatment during appeals of treatment orders. Accordingly, we conclude that the balance of interests weighs in 17 No. 2020AP298-CR
favor of concluding that Scott's automatic stay of involuntary
medication orders does not apply to pretrial proceedings.
¶36 We so conclude because in pretrial proceedings, Scott's
automatic stay of involuntary medication orders pending appeal is
unsound in principle and unworkable in practice. Johnson Controls,
Inc. v. Emps. Ins. of Wausau, 2003 WI 108, ¶99, 264 Wis. 2d 60,
665 N.W.2d 257 (citing Allied-Signal, Inc. v. Dir., Div. of Tax'n,
504 U.S. 768, 783 (1992)). Accordingly, we conclude that the
automatic stay created in Scott shall not be applied during
pretrial proceedings.13
D. Wisconsin Stat. § 971.14(5)(a)1.
¶37 By its terms, Wis. Stat. § 971.14(5)(a)1. limits
commitment to restore competency to "a period not to exceed 12
months, or the maximum sentence specified for the most serious
offense with which the defendant is charged, whichever is less."
The State requested tolling of the statutory 12-month limitation
for achieving competency based on the stay of Green's medication
order under Scott. ¶38 In answering the question of whether Wis. Stat.
§ 971.14(5)(a)1. permits tolling, we begin with the plain words of
the statute to determine what the legislature meant by the words
it chose. Townsend v. ChartSwap, LLC, 2021 WI 86, ¶12, 399 Wis. 2d
599, 967 N.W.2d 21 (citing State ex rel. Kalal v. Cir. Ct. for
13Going 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, shall explain its rationale for granting or denying the defendant's motion after considering our rationale herein.
18 No. 2020AP298-CR
Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110). If
the meaning is plain and unambiguous, our inquiry usually ends
without consulting extrinsic sources of interpretation, such as
legislative history. Townsend, 399 Wis. 2d 599, ¶12. In addition
to the words that the legislature chose, context and the structure
of the statute are important to a plain meaning interpretation.
Id., ¶13.
¶39 The words of Wis. Stat. § 971.14(5)(a)1. say nothing
about tolling, one way or the other. This is not unusual. However,
there have been times when tolling was accorded based on the manner
in which two relevant statutes fit together. Donaldson v. West
Bend Mut. Ins. Co., 2009 WI App. 134, ¶13, 321 Wis. 2d 244, 773
N.W.2d 470 (explaining how the period during which a cause of
action may be used as a counterclaim is tolled by the date on which
plaintiff files the action). The State referenced no such
statutory linkage in this matter.
¶40 Statutory tolling as a court remedy also has been
equitably based on promised action that harms a party who reasonably relied on the promise and is injured when the promised
act does not occur. State ex rel. Griffin v. Smith, 2004 WI 36,
¶3, 270 Wis. 2d 235, 677 N.W.2d 259 (describing counsel's promise
to act as Griffin requested, we equitably tolled the time for
filing certiorari review of his parole revocation). No such
promised action is present here.
¶41 However, while the words of Wis. Stat. § 971.14(5)(a)1.
do not say anything about tolling, they do contextually inform our analysis. See Townsend, 399 Wis. 2d 599, ¶13. Section 19 No. 2020AP298-CR
971.14(5)(a)1. provides that if the court determines that a
defendant is not competent but is likely to become competent within
the statutory timeframe, "[it] shall suspend the proceedings and
commit the defendant to the custody of the department for treatment
for a period not to exceed 12 months . . . ." § 971.14(5)(a)1.
As the court of appeals noted, the legislature describes
§ 971.14(5)(a)1.'s 12-month time period in terms of commitment
rather than treatment. See Green, 396 Wis. 2d 658, ¶61 ("Although
the custody under § 971.14 must be for purposes of treatment, it
is the custody, not the treatment, that may not exceed twelve
months.").
¶42 In examining Wis. Stat. § 971.14's other subsections,
the same 12-month time period is repeatedly described as the
"commitment period." See § 971.14(5)(b) ("Each report shall
indicate either that the defendant has become competent, that the
defendant remains incompetent but that attainment of competency is
likely within the remaining commitment period, or that the
defendant has not made such progress that attainment of competency is likely within the remaining commitment period."); § 971.14
(6)(a) ("If the court determines that it is unlikely that the
defendant will become competent within the remaining commitment
period, it shall discharge the defendant from the commitment and
release him or her, except as provided in par. (b).").
¶43 The legislature's use of a firm 12-month period as a
"commitment" period, rather than employing a more flexible
"treatment" period as the term during which competency could be restored, supports the conclusion that the legislature set a firm 20 No. 2020AP298-CR
limit on the term of an involuntary commitment to restore
competency for trial.
¶44 Furthermore, the statutory history underlying other
amendments to Wis. Stat. § 971.14(5)(a) confirms this
interpretation through the legislature's repeated attention to due
process concerns as instructed by us and by the United States
Supreme Court. See County of Dane v. LIRC, 2009 WI 9, ¶27, 315
Wis. 2d 293, 759 N.W.2d 571 (quoting Richards v. Badger Mut. Ins.
Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581) ("'A review
of statutory history is part of a plain meaning analysis' because
it is part of the context in which we interpret statutory terms.").
¶45 Early provisions of Wis. Stat. § 971.14(5) had no
definite time limit during which a defendant could be committed
when competency was sought for trial. The commitment could proceed
"for so long as such condition endures." Wis. Stat. ch. 191,
§ 4700 (1878). In 1969, the legislature amended § 971.14(5) to
provide that persons committed as incompetent to stand trial should
be confined for treatment for competency no longer than they could be confined if convicted of the crime charged.
¶46 Then in 1975 in response to our decision in Haskins, the
legislature repealed the Wis. Stat. § 971.14(5) requirement that
a defendant could not be committed for longer than the defendant
could have been confined if convicted. A legislative note to
Assembly Bill 257, which was enacted as ch. 153, Laws of 1975,
21 No. 2020AP298-CR
explained that "[t]he changes in sub. (5), relating to length of
commitment to determine competency, are a result of Haskins."14
¶47 In State ex rel. Deisinger v. Treffert, 85 Wis. 2d 257,
270 N.W.2d 402 (1978), we judicially replaced the time limit on
confinements to achieve competency that the legislature had
removed based on its misunderstanding of our Haskins decision. We
concluded that "[t]he most basic notions of due process fairness
require that one found incompetent to stand trial is entitled to
release when observatory confinement reaches the length of the
potential maximum sentence for the underlying criminal offense."
Id. at 268. Shortly after Deisinger, the legislature once again
responded by amending Wis. Stat. § 971.14(5)(a) to legislatively
require the limitation we set out judicially in Deisinger. Ch.
367, Laws of 1981.
¶48 In 1979, the legislature required that a defendant who
was committed to be treated to competence be examined at "6-month
intervals following commitment[, and] if the defendant has not
regained competency within 24 months of commitment" the defendant should be discharged from commitment with a ch. 51 commitment
remaining a possibility. In 1981, the legislature again amended
Wis. Stat. § 971.14(5)(a) to provide that the period during which
treatment would be accorded was "18 months, or the maximum
sentence . . . whichever is less." § 971.14(5)(a) (1981-82).
14This legislative history confirms our understanding derived from the statutory history, which is explained further below, that the legislature's changes were responsive to its understanding of our directives. Westmas v. Creekside Tree Serv., Inc., 2018 WI 12, ¶20, 379 Wis. 2d 471, 907 N.W.2d 68.
22 No. 2020AP298-CR
¶49 Then in 1989 Wis. Act 31, § 2850, effective January 1,
1990, the legislature once again amended Wis. Stat. § 971.14(5)(a)
to reduce the maximum confinement time for treatment to competence
from 18 months to 12 months. That was the last substantive change.
¶50 Those statutory revisions do not decide whether the 12-
month provision found in Wis. Stat. § 971.14(5)(a)1. to bring a
defendant to competence should be tolled in the case before us,
but they show that the legislature was coordinating its revisions
with due process concerns that we raised and that the United States
Supreme Court raised in Jackson. State v. Moore, 167 Wis. 2d 491,
500, 481 N.W.2d 633 (1992). As the United States Supreme Court
has carefully explained, "a person charged by a State with a
criminal offense who is committed solely on account of his
reasonable period of time necessary to determine whether there is
a substantial probability that he will attain [trial competency]
in the foreseeable future." Jackson, 406 U.S. at 738.15
¶51 In the matter before us, the legislature has decided that 12 months is the maximum time during which to "determine
whether there is a substantial probability that [a defendant] will
attain competency in the foreseeable future." Id. at 716. Jackson
limited such confinement based on due process concerns. Given the
past due process consideration that the legislature has afforded
15The presumption of innocence is overturned at conviction and therefore, it is not a consideration postconviction. State v. Allen, 2010 WI 89, ¶17, 328 Wis. 2d 1, 786 N.W.2d 124 ("Upon appeal, however, the defendant is no longer protected by the presumption of innocence.").
23 No. 2020AP298-CR
in its amendments to Wis. Stat. § 971.14(5)(a)1., we conclude that
the plain meaning of the 12-month treatment limit does not permit
tolling of its limit on confinement for pretrial treatment to
achieve competency. Accordingly, we affirm the court of appeals
decision in that regard.
III. CONCLUSION
¶52 We conclude that because the State's significant
pretrial interests in bringing a defendant who meets each one of
the factors set out in Sell v. United States to competency for
trial and providing timely justice to victims outweigh upholding
a defendant's liberty interest in refusing involuntary medication
at the pretrial stage of criminal proceedings, Scott's automatic
stay of involuntary medication orders pending appeal does not apply
to pretrial proceedings. Therefore, we employ our supervisory
authority to so limit our decision in Scott on which the court of
appeals relied.
¶53 We also conclude that Wis. Stat. § 971.14(5)(a)1. is not
subject to tolling in a pretrial context. Accordingly, we affirm the court of appeals decision in part.
By the Court.—The decision of the court of appeals is limited
in part and affirmed in part.
24 No. 2020AP298-CR.awb
¶54 ANN WALSH BRADLEY, J. (concurring in part, dissenting
in part). The involuntary administration of antipsychotic drugs
is "no small matter." Langlade County v. D.J.W., 2020 WI 41, ¶43
n.7, 391 Wis. 2d 231, 942 N.W.2d 277. Such drugs are "powerful
enough to immobilize mind and body," have a "profound
effect . . . on the thought processes of an individual," and come
with a "well-established likelihood of severe and irreversible
adverse side effects." In re Guardianship of Roe, 421 N.E.2d 40,
53 (Mass. 1981); see also United States v. Watson, 793 F.3d 416,
419 (4th Cir. 2015).
¶55 Accordingly, both this court and the United States
Supreme Court have recognized that individuals have a significant
liberty interest in avoiding the unwanted administration of
antipsychotic drugs. State v. Fitzgerald, 2019 WI 69, ¶13, 387
Wis. 2d 384, 929 N.W.2d 165 (citing Washington v. Harper, 494 U.S.
210, 221 (1990)).
¶56 Just four years ago in State v. Scott, 2018 WI 74, ¶43,
382 Wis. 2d 476, 914 N.W.2d 141, this court unanimously again affirmed the need to protect that liberty interest. We established
a new rule affecting criminal defendants declared not competent:
"involuntary medication orders are subject to an automatic stay
pending appeal." Id.
¶57 Our rationale for that rule was likewise unanimous and
succinctly stated: "The reasoning for our decision is simple——if
involuntary medication orders are not automatically stayed pending
appeal, the defendant's 'significant' constitutionally protected 'liberty interest' in 'avoiding the unwanted administration of
1 No. 2020AP298-CR.awb
antipsychotic drugs' is rendered a nullity." Id., ¶44 (citations
omitted).
¶58 Despite no party initially raising the issue,1 the
majority now backtracks on this rule, declaring that our
determination in Scott does not apply to pre-trial proceedings.
In doing so, it accomplishes just the result that Scott was
intended to prevent, i.e., that the defendant's liberty interest
in avoiding unwanted antipsychotic medication is rendered a
nullity.
¶59 I agree with the majority that Wis. Stat.
§ 971.14(5)(a)1. is not subject to tolling.2 However, I part ways
with the majority because I determine that the reasoning behind
the automatic stay in Scott applies equally to pre-trial
proceedings and postconviction proceedings. Rather than limit
Scott, I would uphold it along with the vitality of the
constitutionally protected right on which it is premised.
¶60 Accordingly, I concur in part and dissent in part.
I ¶61 Joseph Green was charged with first-degree intentional
homicide, and his counsel raised concerns regarding his competency
to proceed. Majority op., ¶4. After a hearing, the circuit court
found Green not competent, but that competency could be restored
In neither the State's initial brief nor its reply brief 1
did it argue to limit Scott in the way the majority now accomplishes. The issue of whether Scott should be limited was first raised by the court at oral argument, after which we ordered supplemental briefing. 2 Accordingly, I join part II.D of the majority opinion.
2 No. 2020AP298-CR.awb
with medication. Id., ¶5. It thus entered an involuntary
medication order. Id. Green appealed and sought a stay of the
involuntary medication order pending appeal, which the circuit
court granted pursuant to Scott. Id.
¶62 The State moved to lift the automatic stay and to toll
the statutory time period to bring Green to competency. Id., ¶6.
Both motions were granted by the circuit court and Green appealed.
Id. As relevant here, the court of appeals reversed the circuit
court's tolling order, determining that the circuit court lacked
authority to toll the statutory time period to bring Green to
competency. State v. Green, 2021 WI App 18, ¶2, 396 Wis. 2d 658,
957 N.W.2d 583.
¶63 After the State petitioned for review, the majority now
affirms the court of appeals' conclusion on tolling, determining
that "Wis. Stat. § 971.14(5)(a)1. is not subject to tolling in a
pretrial context." Majority op., ¶3. However, after ordering
supplemental briefing on the issue, the majority also concludes
that Scott's automatic stay "does not apply to pretrial proceedings." Id., ¶2. It reaches this result because, in its
view:
[T]he State's significant pretrial interests in bringing a defendant who meets each one of the factors set out in Sell v. United States to competency for trial and providing timely justice to victims outweigh upholding a defendant's liberty interest in refusing involuntary medication at the pretrial stage of criminal proceedings . . . . Majority op., ¶2 (footnote omitted).
3 No. 2020AP298-CR.awb
II
¶64 Adherence to the well-established liberty interest in
avoiding the unwanted administration of antipsychotic drugs
compelled our decision in Scott. Among the several issues we
decided was "whether involuntary medication orders should be
stayed automatically pending appeal as suggested by Scott." Scott,
382 Wis. 2d 476, ¶42.
¶65 Answering this question in the affirmative, we
unanimously employed our superintending authority to "order that
involuntary medication orders are subject to an automatic stay
pending appeal." Id., ¶43. Explaining our rationale, we stated:
"The reasoning for our decision is simple——if involuntary
medication orders are not automatically stayed pending appeal, the
defendant's 'significant' constitutionally protected 'liberty
interest' in 'avoiding the unwanted administration of
antipsychotic drugs' is rendered a nullity." Id., ¶44 (citations
¶66 Nothing about this holding in Scott indicated that it was limited to postconviction proceedings. If we had wanted to so
limit it, we certainly could have, as we explicitly did with regard
to another of the issues we addressed in Scott. Namely, in
addition to the question of an automatic stay, another question
presented in Scott was as follows: "May a circuit court require
a non-dangerous but incompetent defendant to be involuntarily
treated to competency in the context of postconviction
proceedings . . . ?" Scott, 382 Wis. 2d 476, ¶10 (emphasis added). We answered this question with specific reference to
4 No. 2020AP298-CR.awb
postconviction proceedings only: "Before a circuit court can
require a non-dangerous but incompetent defendant to be
involuntarily treated to competency in the context of
postconviction proceedings, the circuit court must follow the
procedure this court established in State v. Debra A.E., 188
Wis. 2d 111, 523 N.W.2d 727 (1994)." Scott, 382 Wis. 2d 476, ¶11
(emphasis added).
¶67 In contrast, our holding with regard to the automatic
stay contained no such caveat. Indeed, Scott includes not even a
hint that such a limitation was desirable or necessary.3
¶68 More importantly, the reasoning behind the automatic
stay in Scott applies equally to pre-trial proceedings and
postconviction proceedings. Again, the Scott court stated that
its rationale "is simple——if involuntary medication orders are not
automatically stayed pending appeal, the defendant's 'significant'
constitutionally protected 'liberty interest' in 'avoiding the
unwanted administration of antipsychotic drugs' is rendered a
nullity." Id., ¶44 (citations omitted).
The majority fosters confusion in its analysis with its 3
statement that in pre-trial proceedings "Scott's automatic stay of involuntary medication orders pending appeal is unsound in principle and unworkable in practice" and its accompanying citation to Johnson Controls, Inc. v. Employers Insurance of Wausau, 2003 WI 108, ¶99, 264 Wis. 2d 60, 665 N.W.2d 257. Majority op., ¶36. Johnson Controls presents the framework for when this court should depart from stare decisis by overruling past precedents. See Johnson Controls, Inc., 264 Wis. 2d 60, ¶¶94-100. I question whether this analysis has any application to the present case——the majority does not overrule Scott nor does any party advocate for such a result.
5 No. 2020AP298-CR.awb
¶69 I acknowledge that the State's interests in bringing a
defendant to competency may vary based on the procedural posture
of a case. But the defendant's liberty interest in avoiding
unwanted medication is a constant. As Green argues, such an
interest "would be rendered just as much a nullity without an
automatic stay pre-trial as it would postconviction." In either
situation, when the defendant is forcibly medicated, the damage is
done. See United States v. Williams, 356 F.3d 1045, 1055 (9th
Cir. 2004) (referring to an "order compelling a person to take
antipsychotic medication" as "an especially grave infringement of
liberty").
¶70 While removing the automatic stay pre-trial has a
drastic effect on the interests of the defendant, leaving it in
place would have little effect on those of the State. Indeed,
under Scott the State retains the ability to move to lift the stay,
which it can do in short order. Scott, 382 Wis. 2d 476, ¶45.
¶71 The majority correctly identifies the State's interest
in bringing a defendant to trial and achieving timely justice on behalf of the victims. Majority op., ¶¶31, 35. These are of
course strong interests. However, in the name of these interests
the majority tramples a defendant's constitutional rights rooted
in bodily autonomy.
¶72 Once a defendant is forcibly medicated, it is impossible
to undo such an intrusion. We should be mindful to avoid ringing
a bell that cannot be unrung, especially where there exists a
process to lift the stay in the case where the State's interests are as weighty as the majority claims.
6 No. 2020AP298-CR.awb
¶73 For the foregoing reasons, I respectfully concur in part
and dissent in part.
¶74 I am authorized to state that Justices REBECCA FRANK
DALLET and JILL J. KAROFSKY join this separate writing.
7 No. 2020AP298-CR.awb