May 31, 2022 – The judicially created rule that grants an automatic stay to a defendant appealing an involuntary medication order does not apply to pretrial proceedings, the Wisconsin Supreme Court has ruled.
In State v. Green, 2022 WI 30 (May 13, 2022), the supreme court held that the rule should not apply to pretrial proceedings because application of the rule was making it difficult for the state to bring criminal defendants to competence within the 12-month period set by the legislature.
Justice Patience Roggensack wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Rebecca Grassl Bradley, and Justice Brian Hagedorn
Justice Ann Walsh Bradley wrote a dissent, joined by Justice Rebecca Dallet and Justice Jill Karofsky.
Involuntary Medication Order
In December 2017, the Dane County District Attorney charged Joseph G. Green with first-degree intentional homicide with use of a deadly weapon.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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After Green’s lawyer raised the issue of Green’s competency, the Dane County Circuit Court ordered a pretrial competency hearing.
A psychiatrist testified that Green was not competent. He could be restored to competency within the 12-month period established by Wis. Stat. section 971.14(5)(a)1., the psychiatrist testified, by the administration of anti-psychotic medication.
The court found that Green was incompetent and entered an order of commitment for treatment with involuntary administration of medication.
Battle Over Stays, Tolling
Green appealed and filed an emergency motion for a stay of the involuntary medication order pending appeal. The circuit court granted the motion, as required by the Wisconsin Supreme Court’s holding in State v. Scott, 2018 WI 72, 382 Wis. 2d 476, 914 N.W.2d 141.
The state filed two motions, one seeking to lift the automatic stay and one seeking to toll the running of the 12-month period within which state law requires the state to bring an incompetent defendant to competence. The circuit court granted both motions.
Green appealed the circuit court’s grant of the motions and asked the Wisconsin Court of Appeals to reinstate the temporary stay.
The Wisconsin Court of Appeals reversed both the circuit court’s involuntary medication order and its order lifting the automatic stay. The court of appeals held that the circuit court’s order tolling the running of the 12-month period was unlawful.
The state appealed.
Scott Distinguished
In her majority opinion, Justice Roggensack distinguished Scott from Green’s case.
Scott involved an involuntary medication order issued after a competency hearing held during the post-conviction process.
Issuing an automatic stay under those circumstances, Roggensack explained, was different than issuing a stay pretrial because the defendant had already been convicted.
“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,” Justice Roggensack wrote.
“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.”
Pretrial Proceedings Are Different
The same could not be said of the pretrial stage, Justice Roggensack noted, because the common law and U.S. Supreme Court precedent prohibit the state from trying an incompetent defendant.
While an incompetent defendant holds a substantial liberty interest in refusing involuntary medication during the pretrial stage, the state holds a significant interest in bringing the defendant to trial.
Furthermore, “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,” Justice Roggensack wrote.
State ‘Trapped’ by Scott
Since the Scott decision was handed down, Roggensack noted, the state had been “trapped on both ends of the pretrial competency process,” with automatic stays of involuntary medication orders preventing the state from administering the treatment necessary to render defendants competent within the 12-month statutory period.
The resulting bind, Justice Roggensack explained, was prohibiting the state from fulfilling its constitutional duty to give justice to crime victims by bringing competent defendants to trial.
As a result, the Scott rule mandating automatic stays of involuntary medication orders does not appeal to pretrial proceedings, Roggensack concluded.
Tolling Not Allowed
To determine whether section 971.14(5)(a)1. allows the running of the 12-month period to be tolled, Justice Roggensack looked to the section’s plain wording.
Section 971.14(5)(a)1. doesn’t mention tolling, Roggensack noted. But its words, along with the words of other subsections of section 971.14, link the 12-month period to a defendant’s commitment, not to treatment.
“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 the competency could be restored, supports the conclusion that the legislature set a firm limit on the term of an involuntary commitment to restore competency for trial,” Justice Roggensack wrote.
Additionally, Justice Roggensack noted, the legislature had repeatedly amended section 971.14(5)(a) to respond to court decisions expressing concerns about defendants' due-process rights.
Those amendments, Roggensack concluded, made it clear the legislature had decided that 12 months is the maximum time to bring a defendant to competence. Given that, she reasoned, the plain meaning of section 971.14(5)(a)1. prohibits tolling of the 12-month period.
‘The Damage is Done’
In her dissent, Justice A.W. Bradley noted that both the Wisconsin and U.S. Supreme Courts have recognized that defendants have a significant liberty interest in avoiding the forced administration of antipsychotic drugs.
A.W. Bradley pointed out that Scott was decided unanimously and the state hadn’t argued that Scott should be limited to the postconviction stage. Rather, it was the supreme court that raised the issue, at oral argument.
Justice A.W. Bradley acknowledged that the state’s interests in making a defendant competent might vary based on the procedural posture of a case.
But, “as Green argues, such an interest ‘would be rendered just as much a nullity without an automatic stay pretrial as it would postconviction,’” she wrote. “In either situation, when the defendant is forcibly medicated, the damage is done.”
