SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 20, 2019
from an order of the Circuit Court for Milwaukee County, L.C.
No. 2016CF4475, Dennis R. Cimpl, Circuit Court Judge.
Vacated; and REVIEW of a decision of the Court of Appeals.
BYPASS FROM THE COURT OF APPEALS & REVIEW OF DECISION OF
THE COURT OF APPEALS
the defendant-appellant in 18AP1296-CR, and
petitioner-petitioner in 18AP1214-W, there were briefs filed
by Colleen D. Ball, assistant state public defender. There
were oral arguments by Colleen D. Ball.
the plaintiff-respondent, there was a brief filed by Maura FJ
Whelan, assistant attorney general, with whom on the brief is
Brad D. Schimel, attorney general. There was an oral argument
by Maura FJ Whelan.
the respondents, there was a brief filed by Abigail C.S.
Potts, assistant attorney general, with whom on the brief if
Brad D. Schimel, attorney general. There was an oral argument
by Abigail C.S. Potts.
amicus curiae brief was filed in 18AP1296-CR on behalf of
National Association for Criminal Defense Lawyers, Bazelon
Center for Mental Health Law, National Disability Rights
Network, and Disability Rights Wisconsin, by Jeffrey 0.
Davis, James E. Goldschmidt, Zachary T. Eastburn, and Quarles
& Brady LLP, Milwaukee.
REBECCA GRASSL BRADLEY, J.
These consolidated casesconcern the standard under which a
circuit court may order involuntary medication to restore a
defendant's competency to proceed in a criminal case and
the timing of the automatic stay of such orders established
in State v. Scott, 2018 WI 74, 382 Wis.2d 476, 914
N.W.2d 141. The circuit court ordered Raytrell K. Fitzgerald
to be involuntarily medicated pursuant to Wis.Stat. §
971.14 (2017-18)  to restore his competency to stand trial
on a felony possession-of-a-firearm charge. After the circuit
court entered its order, this court released the
Scott decision, subjecting involuntary medication
orders to an automatic stay pending appeal. Following a
hearing on the impact of the Scott decision, the
circuit court stayed its involuntary medication order but
announced its plan to lift the stay in response to the
State's motion. As the case proceeded through the
appellate courts, the circuit court never lifted the stay.
Fitzgerald petitioned the court of appeals for a supervisory
writ, arguing that the automatic stay begins upon entry of
the involuntary medication order rather than upon filing a
notice of appeal as the court of appeals ultimately held.
Because the court is equally divided on the writ matter, we
affirm the court of appeals decision denying Fitzgerald's
petition for a supervisory writ.
We do, however, address Fitzgerald's challenge to the
constitutionality of Wis.Stat. § 971.14 based on its
incompatibility with Sell v. United States, 539 U.S.
166 (2003). In Sell, the United States Supreme Court
held that in limited circumstances the government may
involuntarily medicate a defendant to restore his competency
to proceed to trial, and it outlined four factors that must
be met before a circuit court may enter an order for
involuntary medication. We hold that the standard for
ordering involuntary medication set forth in § 971.14(3)
(dm) and (4) (b) is unconstitutional to the extent it
requires circuit courts to order involuntary medication based
on the standard set forth in paragraph (3) (dm), which does
not comport with Sell. We conclude circuit courts
may order involuntary medication to restore trial competency
under § 971.14 only when the order complies with the
Sell standard. We vacate the circuit court's
order for involuntary medication in this case because it is
In October 2016, the State charged Fitzgerald with possession
of a firearm contrary to a harassment
injunction.The circuit court ordered a competency
evaluation, which showed Fitzgerald suffered from
"Schizoaffective disorder" and lacked substantial
mental capacity to understand the proceedings or to be of
meaningful assistance in his own defense. In December 2017,
the circuit court signed an Order of Commitment for Treatment
requesting an assessment for Fitzgerald's participation
in the Outpatient Competency Restoration Program (OCRP). Dr.
Brooke Lundbohm, a psychologist, sent the circuit court an
OCRP assessment letter in February 2018, concluding that
Fitzgerald "is clinically appropriate for the Outpatient
Competency Restoration Program at this time and has been
admitted to the Program," despite Fitzgerald having a
history of refusing to take prescribed medication. In April
2018, Lundbohm informed the circuit court by letter that
Fitzgerald's "status with the Outpatient Competency
Restoration Program has changed," and he was "no
longer clinically appropriate for participation in" OCRP
due to safety concerns. The letter also noted that Fitzgerald
displayed a lack of motivation to participate in the program.
On that basis, the circuit court "deemed [Fitzgerald] no
longer clinically appropriate for OCRP," remanded
Fitzgerald to the Department of Health Services' (DHS)
custody, and ordered a second competency evaluation under
Wis.Stat. § 971.14.
In May 2018, Dr. Ana Garcia, a psychologist, conducted
Fitzgerald's second competency evaluation and sent her
report to the circuit court. The report noted
Fitzgerald's Schizoaffective Disorder diagnosis and
explained he had been "treated with Seroquel
(antipsychotic medication) and Benztropine (medication used
to treat the side effects of psychotropic medications)."
Garcia reported that when Fitzgerald refused to take his
medication while hospitalized, "an injectable version of
the medication could not be forced upon him" because no
order to medicate involuntarily existed. If treated with
medication, Garcia opined Fitzgerald would "likely
... be restored to competency within the statutory
period," and further noted that Fitzgerald was
"incapable of expressing a rational understanding of the
benefits and risks of medication or treatment."
Accordingly, Garcia concluded that Fitzgerald was
"not competent to refuse medication or
treatment," and recommended that treatment continue
on an inpatient basis. As to the anticipated effectiveness of
the recommended treatment in restoring Fitzgerald's
competency, Garcia noted in her report that "[t]reatment
with antipsychotic medication is known to be effective in
treating symptoms of psychosis, which is precluding
[Fitzgerald's] competence to proceed" in his
On June 18, 2018, the circuit court held a hearing on whether
to issue an order for involuntary medication under Wis.Stat.
§ 971.14. During that hearing, Garcia testified,
explaining why she believed the circuit court should issue an
order for involuntary medication:
• "Fitzgerald has continued to exhibit indications
of psychotic symptoms" and was "unable to discuss
his charges in a reasonable way."
• "[W]e find psychotropic medication to help him
better organize his thoughts, reduce the auditory
hallucinations, and reduce the delusional beliefs."
• Fitzgerald refused to take his medications and
attempted to hide them in his room.
testified that "as a psychologist, I don't prescribe
specific medications" but "I do know that for
treating schizophrenia and schizoaffective disorder, the
primary treatment is an antipsychotic medication, and he had
been prescribed" the generic version of Seroquel during
his admission at Mendota Mental Health Institute.
Fitzgerald also testified at the hearing. He thought he had
been misdiagnosed, explained he had "been feeling really
fine" without medication, and stated that he did not
wish to submit to forced medication, expressing concerns
about the dosage.
After the close of testimony, the circuit court ordered the
administration of involuntary medication to restore
Fitzgerald's competency. The circuit court explained the
basis for its order:
[T]here is an important government interest at stake here and
that is the fact that he's charged with a serious felony.
It may be a status offense, but the fact is he is alleged to
be carrying a gun while under a prohibition for carrying a
gun, and I recall the motion hearing that we had in this
matter when the police approached him and searched him, which
I found was a valid search. And so, therefore, that is in my
opinion an important government interest, the furtherance of
The fact that he does not take his medication is not
facilitating him to be restored to competency. That's
what this is all about so he can stand trial on whether or
not he is guilty of this very serious offense; therefore, the
fact that he's not taking his meds and has to be given
them involuntarily does further that interest and I think
it's also a necessary reason to further that interest.
And we've got testimony from Dr. Garcia, who has reviewed
his psychiatrist [sic] that the two meds or the medication
that is prescribed for him is appropriate, and it was
appropriate back in earlier 2013, when he was not taking and
engaged in violence with his mother.
On June 20, 2018, before Fitzgerald filed his notice of
intent to pursue postdisposition relief, this court decided
Scott, 382 Wis.2d 476. In Scott, we
exercised our superintending authority to "order that
involuntary medication orders [under Wis.Stat. § 971.14]
are subject to an automatic stay pending appeal."
Id., ¶43. On June 25, 2018, Fitzgerald filed
his "Notice of Intent to Pursue Postdisposition
Relief" and two days later filed a letter informing the
circuit court that his medication order was automatically
stayed under Scott.
On June 27, 2018, the circuit court held another hearing. The
circuit court granted the stay, but indicated that it would
immediately lift the stay on the State's motion. On June
28, 2018, the same day Fitzgerald filed his petition for a
supervisory writ in the court of appeals, the circuit court
"vacate[d] the [June 27] proceedings" related to
the automatic stay. The circuit court expressed uncertainty
as to whether Scott's automatic stay occurs
"after the appeal is filed or is it automatic when
there's a notice of intent to appeal filed or is it
automatic if there's merely an allegation that the
defendant is going to file an appeal." In order to
"err on the side of caution," the circuit court
ordered its June 18th involuntary medication order stayed and
set the matter to be heard again in two weeks. The circuit
court reasoned: "[i]f the appeal is not filed I will
lift the stay because then clearly [the] Scott case
doesn't apply," and "[i]f the appeal is filed
the State can then file a motion to lift the stay." The
circuit court then signed a written order granting a stay of
the June 18th involuntary medication order, but on that same
day, Fitzgerald filed a petition for a supervisory writ in
the court of appeals, challenging the circuit court's
plan to lift the automatic stay without requiring the State
to make the showing required under Scott. On July 9,
2018, Fitzgerald also filed a separate notice of appeal
seeking review of the circuit court's June 18th Order for
Commitment, specifically challenging the order for
involuntary administration of medication.
On July 12, 2018, the court of appeals denied
Fitzgerald's petition for a supervisory writ. State
ex rel. Fitzgerald v. Circuit Court for Milwaukee Cty.,
No. 2018AP1214-W, unpublished order (Wis. Ct. App. July 12,
2018) . Because the circuit court's stay remained in
effect, the court of appeals concluded that "to the
extent Scott establishes the automatic stay as a
plain duty, the circuit court has complied."
Id. at 5. However, the court of appeals also
concluded that "Fitzgerald was not entitled to an
automatic stay until he actually had a pending
appeal, and that did not happen until he filed the
notice of appeal on July 9, 2018." Id.
(emphasis added). Fitzgerald petitioned for review of the
court of appeals decision denying a supervisory writ, which
we granted. Fitzgerald also petitioned to bypass the court of
appeals for review of the June 18th underlying medication
order, and we granted the bypass petition and ordered both
cases to be argued on March 20, 2019.
Before this court heard oral argument in Fitzgerald's
cases, the circuit court found Fitzgerald competent and
resumed the criminal proceedings. Fitzgerald pled guilty to
the underlying charge on January 11, 2019, and the circuit
court sentenced him to time served. Consequently, the State
moved to dismiss as moot both of Fitzgerald's cases, but
we denied the motion. After oral argument, we consolidated
the two cases for the purposes of disposition.