Aug. 21, 2024 – A new state appellate procedure rule, Wis. Stat. Rule 809.109, went into effect July 1, 2024, the result of a rules petition by the Wisconsin Judicial Council.

This rule, adopted by the Wisconsin Supreme Court, now governs appeals from Wis. Stat. section 971.14 prejudgment orders regarding a criminal defendant’s competency to stand trial, which includes orders concerning treatment to competency and involuntary medication.

Prior to this new rule, Wisconsin had no specific procedures for litigants, circuit courts, court reporters, and appellate courts to follow for such appeals beyond those generally applicable for appeals. (Although Wis. Stat. § 971.14 orders are nonfinal, case law has made clear they are appealable as of right.)

This omission led to great disparity throughout the state on how such matters were handled, including how quickly they were disposed of. Now, a uniform, organized, sensible and expedited rule exists.

Experienced Representatives of Interested Parties Play Key Role in the Judicial Council’s Appellate Procedure Committee’s Work on Project

In addition to the Judicial Council’s Appellate Procedure Committee’s (APC) members, the APC worked intently with – and benefited greatly from – the participation of numerous experts on this subject matter.

These individuals included attorneys in the state’s Department of Health Services, Public Defender’s Office, and the Department of Justice.

Over the years, these agencies and their attorneys were often at loggerheads in particular cases on the rights and procedures that courts should adopt to fill the “rules void” in appeals of Wis. Stat. § 971.14 orders.

Yet, these same entities recognized the overall benefit of having a set of rules that “makes sense” and protects important concerns held by each of them.

These included, from the DOJ, ensuring an appeal can be completed within the limited deadlines for restoring a defendant to competency to stand trial (i.e., within twelve months for felony charges) lest the defendant be released from custody; from the DHS, not having individuals start receiving and then stopping (and maybe again restarting) medication while an order is in effect but before a stay of that order is obtained; and from the SPD, being able to know how – and in which court– to properly seek a stay of a Wis. Stat. section 971.14 order.

Accordingly, effective compromises were made and are manifested in Wis. Stat. Rule 809.109.

Key Provisions of the New Rule

There are many aspects of the new rule that deserve attention for those attorneys and judges who handle litigation following the entry of an order pursuant to Wis. Stat. 971.14. We encourage a full review of the rule and other resources, some of which are listed below. Briefly, some of the more important features are:

1. expedited time for parties to request transcripts and file briefs, for court reporters to prepare transcripts, and for the court of appeals to issue a decision;

2. a short automatic stay of involuntary medication orders and an expedited procedure for the defendant to move the court of appeals to continue the stay and the court to rule on that motion; and

3. court filings in the court of appeals must refer to the defendant using initials or a pseudonym, which is designed to be a compromise between the need for criminal proceedings to be public, on the one hand, and the desire to protect the mental health proceedings involving defendants, on the other.

Here are some links to materials regarding this new rule:

• the Wisconsin Supreme Court’s order on the petition;

• the Judicial Council’s memorandum supporting its petition; and

• a blog post by the SPD office.