State v. Wilson P. Anderson

2023 WI 44, 990 N.W.2d 771, 407 Wis. 2d 428

• Court: Wisconsin Supreme Court
• Decided: June 2, 2023
• Docket: 2020AP000819-CR
• Status: Published

Opinion

2023 WI 44

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP819-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Wilson P. Anderson, Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 307 Wis. 2d 244, 959 N.W.2d 93 (2021 – unpublished)

OPINION FILED: June 2, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 17, 2023

SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: David A. Feiss

JUSTICES: Per curiam. ROGGENSACK, J., filed a dissenting opinion. NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs filed by David J. Susens, assistant state public defender. There was an oral argument by David J. Susens, assistant state public defender.

For the plaintiff-respondent, there was a brief 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, assistant attorney general. An amicus curiae brief was filed by James E. Goldschmidt, Ellen E. Anderson, Elise A. Ashley, and Quarles & Brady LLP, Milwaukee, for the National Disability Rights Network.

2 2023 WI 44 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP819-CR (L.C. No. 2020CM939)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. JUN 2, 2023

Wilson P. Anderson, Sheila T. Reiff Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 PER CURIAM. Wilson P. Anderson petitioned for review

of a court of appeals decision, State v. Anderson, No.

2020AP819-CR, unpublished slip op. (Wis. Ct. App. Mar. 16,

2021), that affirmed the circuit court's order authorizing the

involuntary administration of medication to restore Anderson's

competency. In its briefing and arguments to this court, the

State conceded that "it failed to meet its burden under Sell" at

Anderson's competency hearing, and the circuit court had

therefore erred when it ordered involuntary medication. See

Sell v. United States, 539 U.S. 166 (2003). Accordingly, we summarily reverse the decision of the court of appeals, and No. 2020AP819-CR

remand the cause to the circuit court with instructions to

vacate the involuntary medication order.

By the Court.—The decision of the court of appeals is

reversed, and the cause is remanded to the circuit court.

2 No. 2020AP819-CR

¶2 PATIENCE DRAKE ROGGENSACK, J. (dissenting). Today

this court fails to perform its obligation to declare the law.

Instead, it sidesteps the significant legal questions parties

brought to us to decide and we accepted when we granted Wilson

P. Anderson's petition for review. Because I would decide at

least whether a psychiatrist is necessary to give an opinion on

medicines that are sufficient to address Anderson's mental

illness and bring him to competency, I respectfully dissent from

this court's non-decision decision.

I. BACKGROUND

¶3 In March 2020, Anderson hit a stranger on the head

unprovoked, causing her bodily harm. Anderson was arrested, and

the State filed criminal charges against him the following day.

¶4 The circuit court ordered a competency report,1 which

Forensic Psychologist Dr. Debora L. Collins completed. As part

of her analysis, Dr. Collins reviewed the criminal complaint,

Anderson's medical records, and a summary of his interactions

with the Milwaukee County Behavioral Health Division. Dr. Collins also administered a competency evaluation through

Anderson's cell door, due to Anderson's "level of agitation and

erratic behavior." Anderson "shouted and yelled comments"

throughout the evaluation. Dr. Collins was "not assured" that

Anderson understood the purpose of the evaluation. Anderson's

responses frequently were "slurred, mumbled, and/or otherwise

incoherent."2 Officers conveyed to Dr. Collins that Anderson

Honorable Dennis R. Cimpl of the Milwaukee County Circuit 1

Court presided. 2 R. 3 at 2, 3. 1 No. 2020AP819-CR

fashioned his hand in the shape of a gun and pointed his hand at

officers the day before the evaluation.

¶5 Dr. Collins filed a report in which she opined

Anderson was not competent to understand the criminal

proceedings against him or to aid in his defense. She

recommended psychiatric treatment at a state mental health

institute to restore competency but did not make any

recommendations for involuntary medication. Anderson was not

taking any medications at the time of his arrest, although he

had had more than 35 episodes of county care since 2011. His

records reflect a major mental illness often identified as

Schizoaffective disorder.3

¶6 Anderson requested a contested competency hearing, and

the court4 ordered Dr. Collins to file an addendum to her report

specifically outlining her opinion as to Anderson's need for

involuntary medication. Dr. Collins' addendum stated Anderson

was "not competent to make treatment decisions, including with

respect to psychotropic medications,"5 but Dr. Collins did not provide an opinion as to a course of treatment, medication

dosages, or potential side effects that Anderson may experience.

¶7 On April 9, 2020, the court held a hearing regarding

Anderson's competency to stand trial and whether to subject

3 Id. at 3, 4. 4 Honorable Frederick C. Rosa of the Milwaukee County Circuit Court presided. 5 R. 4 at 2.

Anderson to an order for involuntary medication.6 Dr. Collins

was the only witness to testify. As part of her testimony, she

answered various questions:

Q Dr. Collins, your degree is in psychology; is that right?

A Yes.

Q You have no medical training as a medical doctor; is that correct?

A I am not a medical doctor. I'm a psychologist.

Q You are not able to prescribe medications to anyone at this time in the course of your present employment?

A That is correct.[7] ¶8 Anderson did not object to Dr. Collins' testimony

regarding his competency, but he objected to Dr. Collins'

"medication order testimony."8 The court overruled Anderson's

objections and allowed Dr. Collins to testify "on both facets."9

The court issued an involuntary medication and commitment order.

The circuit court stayed the order for involuntary medication on

April 16, 2020.10 ¶9 Anderson appealed the order, asking the court of

appeals "whether the State offered sufficient evidence to

6 Honorable David Feiss of the Milwaukee County Circuit Court presided. 7 R. 18 at 5, 6. 8 Id. at 7. 9 Id. at 8. 10 R. 12 at 1.

3 No. 2020AP819-CR

support an order for involuntary medication under Sell v. United

States."11 The court of appeals affirmed the circuit court's

involuntary commitment order in an unpublished decision. State

v. Anderson, No. 2020AP160-CR, unpublished slip op. (Wis. Ct.

App. Mar. 16, 2021).

¶10 Anderson petitioned this court for review, on the

heels of State v. Green. Because we granted Green's petition

for review, we held Anderson's case in abeyance until we

released our opinion in Green on May 13, 2022. State v. Green,

2022 WI 30, 401 Wis. 2d 542, 973 N.W.2d 770. We ordered parties

in State v. Anderson to submit simultaneous letter briefs as to

whether our opinion in Green resolved their issues.

¶11 Anderson's May 27, 2022 letter brief argued our

decision in Green did not resolve his issues. He clarified that

"[he] objects only to the court's reliance on the

unconstitutional portions of [Wis. Stat.] § 971.14 [(2021-22)]12

and the state's failure to present a treatment plan and use

evidence from a licensed physician to prove the second, third, and fourth Sell factors." The State's letter brief of the same

day clarified the State's position: "[Anderson] contends that

Green [396 Wis. 2d 658] requires the State to offer an

individualized treatment plan to satisfy the Sell factors. . . .

The State agrees with Anderson that the court of appeals here

erred by not applying Green when determining whether the State

11 Sell v. United States, 539 U.S. 166 (2003).

All subsequent references to the Wisconsin Statutes are 12

to the 2021-22 version unless otherwise indicated.

4 No. 2020AP819-CR

proved the Sell factors." We granted Anderson's petition for

review on September 13, 2022, ordered full briefing, and heard

oral argument on April 17, 2023. Despite all of the above,

today we disregard our constitutional function and we declare no

law.

II. DISCUSSION

A. Standard of Review

¶12 We review whether the circuit court complied with the

constitutional overlay of Sell v. United States, 539 U.S. 166

(2003) to Wis. Stat. § 971.14 under the facts of this case as a

question of constitutional fact. As such, historic facts are

upheld unless clearly erroneous, and whether those facts satisfy

the constitutional standard in determination of the Sell factors

is a question of law for our independent review. State v.

Martwick, 2000 WI 5, ¶18, 231 Wis. 2d 801, 604 N.W.2d 552.

B. General Principles

¶13 Wisconsin courts have a long history with criminal and

civil commitment orders, as well as orders for involuntary medication in both contexts. Despite this long history, many

questions remain unresolved.

¶14 In the criminal context (Wis. Stat. ch. 971), it is

likely that the substantial number of cases that have come to us

reflects the difficulty imposed on circuit courts that must

balance a prisoner's significant liberty interest to avoid

forced medication against the State's significant interest in

prosecuting defendants for the commission of a serious crime. Sell, 539 U.S. at 178 (quoting Washington v. Harper, 494 U.S.

5 No. 2020AP819-CR

210, 236 (1990)). See e.g., State v. Anderson, No. 2020AP819-

CR, Green, 401 Wis. 2d 542, State v. Yakich, 2022 WI 8, 400

Wis. 2d 549, 970 N.W.2d 12, State v. Fitzgerald, 2019 WI 69, 387

Wis. 2d 384, 929 N.W.2d 165.

¶15 The legal terrain reflects the complex reality of

involuntary medication orders to regain competency. In

Fitzgerald we comprehensively reviewed the constitutional

foundation, as developed in case law. Id., ¶¶13-18. There, we

underscored the root of an individual's "significant liberty

interest" in avoiding antipsychotic drugs is secured by the Due

Process Clause. Id., ¶13, (quoting Harper, 494 U.S. at 221).

We then summarized Sell, which announced a four-factor test "to

determine whether such [involuntary] medication is

constitutionally appropriate," and which also asserted that

"administration of drugs solely for trial competence

purposes . . . may be rare." Fitzgerald, 387 Wis. 2d 384, ¶13

(citing Sell, 539 U.S. at 179, 180).

¶16 Accordingly, the four-factor test announced in Sell must be satisfied to meet the Constitution's high bar. Id. at

180-81. First, the court "must find that important governmental

interests are at stake." Id. at 180. Second, the court must

conclude "that involuntary medication will significantly further

those [] state interests," by rendering the defendant competent

to stand trial, but also that the drugs are "substantially

unlikely to have side effects that will interfere significantly

with the defendant's ability to assist counsel in conducting a trial defense." Id. at 181. Third, the court must conclude

6 No. 2020AP819-CR

that the involuntary medication is "necessary to further those

interests" and that "any alternative, less intrusive treatments

are unlikely to achieve substantially the same results." Id.

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.

¶17 In Wisconsin, the court of appeals interpreted Sell as

requiring an individualized treatment plan. Green, 396 Wis. 2d

658, ¶38. We did not address this particular issue in our

review of Green, nor did we disturb it. Green, 401 Wis. 2d 542.

Accordingly, Wisconsin appears to continue to require that the

State provide an individual treatment plan when considering

whether the second, third, and fourth Sell factors have been

met. See Cook v. Cook, 208 Wis. 2d 166, 188, 560 N.W.2d 246

(1997).

¶18 In addition, Wis. Stat. § 971.14 provides for pre-

trial competency procedures. In broad strokes, the statute

requires examination of the defendant, a report, a hearing, and commitment, as well as outlining the process of discharge.

However, in Fitzgerald, we held § 971.14(3)(dm) is an

insufficient standard upon which to base forced psychotropic

medications. Fitzgerald, 387 Wis. 2d 384, ¶25.

¶19 We also reviewed each of the Sell factors in a way

that demonstrates medical knowledge is required to provide

relevant testimony for some of those factors. For example, in

regard to the second Sell factor, "administration of the drugs is substantially likely to render the defendant competent to

7 No. 2020AP819-CR

stand trial" and "unlikely to have side effects that will

interfere significantly with the defendant's ability to assist

counsel in conducting a trial defense." Id., ¶27. In regard to

the fourth Sell factor, the circuit court must find that the

medication is "medically appropriate," i.e., "in the patient's

best medical interest in light of his medical condition." Id.,

¶29 (quoting Sell, 539 U.S. at 181).

C. Anderson's Commitment

¶20 Whether testimony from a psychologist satisfies Sell

is a question we have not addressed. Anderson brings this

question to us squarely, as the circuit court ordered him to be

involuntarily medicated based on the testimony of Dr. Collins, a

psychologist. He objected at the circuit court, claiming that

the testimony of a psychiatrist was necessary, and he objected

here for the same reason.

¶21 In my view, a psychologist's testimony, while relevant

to whether a defendant is incompetent to proceed to trial, is

not sufficient to provide relevant testimony on at least the second and fourth Sell factors. A medical doctor's testimony is

necessary, i.e., a psychiatrist's testimony is needed to meet

the standards in the second and fourth Sell factors.

¶22 By declining to address Anderson's question regarding

whether a psychologist is qualified to give testimony required

by at least some of the Sell factors, this court shirks its duty

to the parties and the public to declare what the law requires.

We also disserve those closest to the mentally ill, those who seek help before an ill individual becomes more dangerous.

8 No. 2020AP819-CR

Today is another example of this court's increasing indifference

to the obligations imposed upon the Wisconsin Supreme Court as

an institution. I dissent because I would fulfill our

obligation in a deeply complicated legal terrain and of

incredible personal significance to those seeking guidance from

this court.

¶23 Instead, the court chooses simply to vacate Anderson's

involuntary medication order. A curious exercise, as the

circuit court stayed it April 16, 2020. In addition, as the

State informed this court in May 2022:

According to CCAP, on August 14, 2020, the circuit court entered an Order of Conversion to Civil Commitment Proceedings [u]nder Wis. Stat. § 971.14(6)(b). Pursuant to that statute, a court that discharges a defendant from pretrial competency commitment 'may order that the defendant be taken immediately into custody by a law enforcement official and promptly delivered to a facility' for purposes of Chapter 51 or 55 proceedings. . . . No action has been taken on the State's prosecution since that time. Section 971.14(6)(a) establishes the requirements for

proceedings pursuant to paragraph b, and states, "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)."

¶24 Wisconsin Stat. § 971.14(6)(b) further provides,

"Thereafter, detention of the defendant shall be governed by

s. 51.15, 51.45(11), or 55.135, as appropriate." Accordingly,

Anderson was discharged from the ch. 971 commitment and the involuntary medication order he asked us to review. Any

9 No. 2020AP819-CR

subsequent civil commitment or involuntary medication order to

which Anderson may currently be subject is not part of the

record.

D. Choosing to Ignore This Court's Obligation

¶25 Lastly, I address this court's per curiam decision.

The court states, "In its briefing and arguments to this court,

the State conceded that 'it failed to meet its burden under

Sell,' at Anderson's competency hearing, and the circuit court

had therefore erred when it ordered involuntary medication."

That may be so, but the State made this concession in the very

letter briefing upon which this court ordered full briefing and

argument.

¶26 In May 2022, the State informed this court it

"agree[d] with Anderson that the court of appeals here erred by

not applying Green when determining whether the State proved the

Sell factors." There was nothing new this court could have

learned about the State's position from full briefing if the

court intended to decide the case on the State's concession, as it does today. But, by granting Anderson's petition for review

with the issue "Did the involuntary medication order violate due

process because the state failed to meet its burden to prove the

second, third, and fourth Sell factors by clear and convincing

evidence?" and ordering briefing, the parties likely understood

an issue on review would be one of testimonial qualifications or

of evidentiary sufficiency.

¶27 Anderson's briefing focused on the sufficiency of the State's evidence, as he argued testimony from a licensed

10 No. 2020AP819-CR

physician was required to meet Sell. Why now has the court

refused to address at least this question? It is a recurring

issue in commitment cases.

¶28 I am deeply troubled by this court's increasing

reluctance to fulfill its obligation as a court of law-

declaration. There are circuit courts serving all 72 counties

in this state. Parties may exercise appellate rights in the

courts of appeal, whose "primary function is error correcting."

Cook, 208 Wis. 2d at 188. Wisconsin's four courts of appeal

"function as a single court." In re Court of Appeals, 82

Wis. 2d 369, 371, 263 N.W.2d 149 (1978).

¶29 But the Supreme Court is the only court in Wisconsin

primarily tasked with "law defining." Cook, 208 Wis. 2d at 189.

This is the only court with the purpose of "oversee[ing] and

implement[ing] the statewide development of the law," and the

"only state court with the power to overrule, modify, or

withdraw language from a previous supreme court case." Id.

¶30 Today, this court elects to do nothing despite the awesome responsibility——the obligation——to oversee and implement

law declaration in Wisconsin. I regret that the parties'

efforts to inform us of the legal issues presented fell on

inattentive ears and that they have received no thoughtful

response from this court.

III. CONCLUSION

¶31 Today this court disregards its obligation to declare

the law. Instead, it conveniently sidesteps the significant legal questions parties brought to us to decide and we accepted

11 No. 2020AP819-CR

when we granted Anderson's petition for review. Because I would

decide at least whether a psychiatrist is necessary to give an

opinion on medicines that are sufficient to address Anderson's

mental illness, I respectfully dissent from this court's non-

decision decision.

12 No. 2020AP819-CR