2018 WI 74
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2017-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Andre L. Scott,
Defendant-Appellant.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: June 20, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 14, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Kremers
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs filed and an
oral argument by Colleen D. Ball, assistant state public
defender.
For the plaintiff-respondent, there was a brief filed by
Luke N. Berg, deputy solicitor general, with whom on the brief
were Brad D. Schimel, attorney general, and Ryan J. Walsh, chief
deputy solicitor general. There was an oral argument by Luke N.
Berg, deputy solicitor general.
2018 WI 74
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2017-CR
(L.C. No. 2009CF136)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUN 20, 2018
Andre L. Scott,
Sheila T. Reiff
Defendant-Appellant-Petitioner. Clerk of Supreme Court
APPEAL from an order of the Circuit Court for Milwaukee
County. Reversed and remanded.
¶1 SHIRLEY S. ABRAHAMSON, J. This is an appeal from an
order of the Circuit Court for Milwaukee County, Jeffrey A.
Kremers, Judge. The circuit court ordered Andre Scott, the
defendant, to be involuntarily medicated to competency for
purposes of participating in postconviction proceedings after
the circuit court found that he was not competent to proceed
with his postconviction motion for relief and was not competent
to refuse medication and treatment.
No. 2016AP2017-CR
¶2 The defendant petitioned this court to bypass the
court of appeals1 and decide his appeal of the circuit court
order requiring involuntary medication.2 This court granted the
petition, bypassing the court of appeals.
¶3 We reverse the order of the circuit court and remand
the cause to the circuit court for proceedings consistent with
this opinion.
¶4 The facts underlying the circuit court order that the
defendant be involuntarily medicated to competency for purposes
of assisting with his postconviction proceedings are simple and
undisputed.
¶5 Several years after being convicted of battery,
disorderly conduct, and kidnapping, the defendant, Andre Scott,
sought to pursue postconviction relief. Having concerns about
the defendant's ability to assist with postconviction
proceedings, defendant's counsel asked for a competency
evaluation.
¶6 In response to defense counsel's request, the circuit
court held a hearing on the defendant's competency. After
taking testimony, the circuit court ordered the defendant to be
involuntarily medicated to competency for purposes of
participating in postconviction proceedings.
1
See Wis. Stat. § (Rule) 809.60 (2015-16).
2
The circuit court stayed its involuntary medication order
for 30 days so that the defendant could seek appellate relief.
2
No. 2016AP2017-CR
¶7 The State initially defended the circuit court's
involuntary medication order. Thereafter, the State argued that
the involuntary medication order should be vacated because it
was premature. The State acknowledged that the circuit court
had failed to follow the procedure this court set forth in State
v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994), for how
to resolve competency issues at the postconviction stage of
criminal proceedings.
¶8 We conclude, as the State urges, that because the
circuit court did not follow the mandatory procedure set forth
in Debra A.E., the circuit court's order that the defendant be
involuntarily medicated to competency for purposes of assisting
with postconviction proceedings was issued prematurely and is
invalid.
¶9 Accordingly, we reverse the order of the circuit court
and remand the cause to the circuit court for further
proceedings consistent with this opinion.
¶10 The instant case presents us with four questions:
1. May a circuit court require a non-dangerous but
incompetent defendant to be involuntarily treated to
competency in the context of postconviction
proceedings, and if so, is Wis. Stat. § 971.14(4)(b)
(2015-16)3 unconstitutional on its face because it does
3
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
3
No. 2016AP2017-CR
not comport with the requirements announced in Sell v.
United States, 539 U.S. 166 (2003)?
2. Is a circuit court order finding the defendant
incompetent to proceed and requiring the defendant to
be involuntarily treated to competency a final order
for purposes of appellate review?
3. Did the court of appeals erroneously exercise its
discretion when it denied a motion for relief pending
appeal without explaining its reasoning?
4. Should involuntary medication or treatment orders be
automatically stayed pending appeal?
¶11 We answer the questions presented as follows:
1. 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). If
Debra A.E. is applied properly, an order finding the
defendant incompetent to seek postconviction relief
ordinarily will not need to include an order for
involuntary medication or treatment to restore
competency. The circuit court erred in the instant
case by failing to comply with the procedures
established in Debra A.E.
2. The proceeding to determine whether a defendant is
competent is separate and distinct from the
4
No. 2016AP2017-CR
defendant's underlying criminal proceeding. Thus, an
order that the defendant is not competent to proceed
(and in the instant case, that the defendant should be
medicated and treated to competency) is a final order
issued in a special proceeding for purposes of appeal.4
3. The court of appeals erroneously exercised its
discretion when it denied the defendant's motion for
relief pending appeal without explaining its reasoning
for its discretionary denial decision.
4. Involuntary medication orders are subject to an
automatic stay pending appeal, which can be lifted
upon a successful motion by the State.
¶12 Because we reverse the circuit court order on the
ground that the circuit court did not comply with Debra A.E., we
need not address the effect of Sell v. United States, 539 U.S.
166 (2003), on the constitutionality of Wis. Stat.
§ 971.14(4)(b). We adhere to the doctrine of constitutional
4
Both the State and the defendant agree that that an
involuntary medication order is immediately appealable.
However, the parties propose alternative paths the court may
take to hold that an involuntary medication order is immediately
appealable. The defendant argues that an involuntary medication
order is a final order that is appealable as a matter of right
under Wis. Stat. § 808.03(1). The State argues that appeals
from involuntary medication orders should be taken as
interlocutory appeals. For the reasons set forth in this
opinion, we agree with the defendant.
5
No. 2016AP2017-CR
avoidance: A court ordinarily resolves a case on available non-
constitutional grounds.5
I
¶13 The facts, for purposes of this review, are simple and
undisputed. In 2009, the defendant, Andre Scott, was convicted
of battery, disorderly conduct, and kidnapping.
¶14 In 2015, the defendant's counsel expressed concerns
about the defendant's ability to assist with the postconviction
proceedings and to make decisions committed by law to the
defendant to a reasonable degree of rational understanding.
Defense counsel asked for a competency evaluation of the
defendant, and the circuit court granted the request.
¶15 During the competency evaluation, the evaluator
testified that he did not consider the defendant dangerous or
threatening; that although the defendant is not competent to
proceed, the defendant's symptoms are treatable; that the
defendant refused medication because he lacked insight into his
illness and his need for treatment; and that it was likely that
the defendant's competence to proceed could be restored with
psychotropic treatment.
¶16 Defense counsel explained that the defendant was never
found to be dangerous to himself or anyone else; that the
5
"This court does not normally decide constitutional
questions if the case can be resolved on other grounds." Adams
Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶91, 294
Wis. 2d 441, 717 N.W.2d 803 (quoting Labor & Farm Party v.
Elections Bd., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984)).
6
No. 2016AP2017-CR
defendant did not want an involuntary medication order; and that
the defendant likely would not have pursued an appeal if a
medication order were required.
¶17 Nevertheless, the circuit court issued an order
directing involuntary treatment after concluding that the
defendant was not competent to proceed with his motion for
postconviction relief and not competent to refuse medication and
treatment. However, the circuit court stayed its involuntary
medication order for 30 days so that the defendant could pursue
appellate relief.
¶18 The defendant filed a petition for leave to appeal the
circuit court order. Wis. Stat. § (Rule) 809.50. The court of
appeals denied the defendant's petition for leave to appeal and
lifted the circuit court's stay of the involuntary medication
order.
¶19 The defendant then appealed the involuntary medication
order as an appeal as a matter of right, Wis. Stat. § 808.03(1),
and filed an emergency motion to stay the medication order
pending appeal. The court of appeals denied the stay of the
medication order but allowed the direct appeal to proceed. The
court of appeals did not explain why it denied the defendant's
motion to stay the medication order. As a result, the
Department of Health Services began medicating the defendant.
¶20 The circuit court concluded that the defendant was
competent to proceed after approximately seven months of
treatment, and he is no longer subject to the involuntary
medication order. However, the circuit court warned the
7
No. 2016AP2017-CR
defendant that it could order him to submit to treatment again
if he stops taking his medication and becomes incompetent.
II
¶21 First, we address the circuit court order for
involuntary medication and treatment of the defendant. We
conclude that the circuit court erred by failing to follow the
mandatory procedure this court established in Debra A.E. for a
circuit court to require a non-dangerous but incompetent
defendant to be involuntarily treated to competency in the
context of postconviction proceedings.
¶22 Under Debra A.E., the circuit court order that the
defendant is incompetent for purposes of appeal need not have
included an order for treatment to restore competency.
Ordinarily, the defendant is not needed to assist counsel in
some or all issues involved in postconviction proceedings.
Debra A.E., 188 Wis. 2d at 130.
¶23 Indeed, the court noted in Debra A.E., 188 Wis. 2d at
130, that instances in which a defendant may be involuntarily
medicated to competency for purposes of appeal will be rare.
The record in the instant case does not support the conclusion
that the instant case is one of those rare instances in which
the defendant may be involuntarily medicated to competency for
purposes of appeal.
¶24 Debra A.E. fashioned a mandatory process for managing
postconviction relief of allegedly incompetent defendants. The
process is designed to balance the interests of incompetent
defendants in meaningful postconviction relief and the interest
8
No. 2016AP2017-CR
of the public in expediting postconviction relief and reaching a
final determination of the merits. Debra A.E., 188 Wis. 2d at
119, 129-35. Furthermore, the Debra A.E. court concluded that
if this process were followed, a court order for treatment to
restore competency will ordinarily be unnecessary because
"[m]eaningful postconviction relief can be provided even though
a defendant is incompetent."6
¶25 The process established by Debra A.E. is as follows:
• As soon as there is a good faith doubt about the
defendant's competency to seek postconviction relief,
defense counsel should promptly advise the appropriate
court of this doubt (on the record) and move for a
ruling on competency.7
• The court shall honor defense counsel's request when
there is reason to doubt a defendant's competency.8
• To determine competency, the court may order an
examination and hold a hearing.9
• The test for competency during postconviction
proceedings is whether the defendant "is unable to
assist counsel or to make decisions committed by law
6
State v. Debra A.E., 188 Wis. 2d 111, 130, 523 N.W.2d 727
(1994).
7
Id. at 131.
8
Id.
9
Id. at 131-32.
9
No. 2016AP2017-CR
to the defendant with a reasonable degree of rational
understanding."10
• When the issues in a postconviction proceeding rest on
the record in the circuit court and involve no risk to
the defendant, defense counsel can proceed with
postconviction relief on a defendant's behalf even if
the defendant is incompetent.11
• When the issues in a postconviction proceeding involve
some risk to the defendant, these issues require the
defendant's decision-making because whether to file an
appeal and the objectives to pursue are decisions
committed by law to the defendant.12
• If the defendant's assistance is needed for decision-
making and the defendant is likely to attain
competency in the near future, a circuit court may
grant a continuance or an enlargement of time for
filing the necessary notices or motions for
postconviction relief or may appoint a guardian to
make the decisions that the law requires the defendant
to make.13 If the defendant's assistance is needed to
develop a factual foundation and the defendant is not
10
Id. at 126.
11
Id. at 130.
12
Id. at 126, 133-34.
13
Id. at 135.
10
No. 2016AP2017-CR
likely to attain competency in the near future, these
issues can be raised at a later proceeding in a
§ 974.06 motion if the defendant regains competency.14
¶26 Because the procedure mandated by this court in Debra
A.E. was not followed in the instant case, we conclude, as did
the State, that the involuntary medication order was issued
prematurely and is invalid. Specifically, the circuit court
acted prematurely by ordering that the defendant be medicated to
competency without determining whether and to what extent
postconviction proceedings could continue despite the
defendant's incompetency. As we explained in Debra A.E.,
"[m]eaningful postconviction relief can be provided even though
a defendant is incompetent[,]" and the process through which
circuit courts and counsel manage the postconviction relief of
incompetent defendants will not ordinarily need to include a
court order for treatment to restore competency. Debra A.E.,
188 Wis. 2d at 129-30.15
III
14
Id. at 135.
15
Because we reverse the circuit court order on the ground
that the circuit court did not adhere to the procedures set
forth in Debra A.E., we need not address the effect of Sell v.
United States, 539 U.S. 166 (2003), on the constitutionality of
Wis. Stat. § 971.14(4)(b). As we stated previously, a court
avoids a decision regarding the constitutionality of a statute
when the court can decide the case on non-constitutional
grounds. Adams Outdoor Advert., Ltd. v. City of Madison, 2006
WI 104, ¶91, 294 Wis. 2d 441, 717 N.W.2d 803 (quoting Labor &
Farm Party v. Elections Bd., 117 Wis. 2d 351, 354, 344
N.W.2d 177 (1984)).
11
No. 2016AP2017-CR
¶27 The second issue we address is whether the circuit
court order finding the defendant incompetent to proceed and
requiring the defendant to be involuntarily treated to
competency is a final order for purposes of appellate review.
¶28 The status of an order as a final order for purposes
of appeal is a question of law that this court decides
independently of the circuit court or court of appeals but
benefitting from their analyses.16
¶29 The State argues that appeals from involuntary
medication orders should be taken as interlocutory appeals. The
defendant argues that these appeals should be brought as a
matter of right under Wis. Stat. § 808.03(1) as an appeal of a
final order of a special proceeding.17 For the following
reasons, we agree with the defendant.
¶30 A final circuit court order is appealable as of right.
Wis. Stat. § 808.03(1).18 A final circuit court order is defined
in Wis. Stat. § 808.03(1) as "a judgment, order or disposition
16
Admiral Ins. Co. v. Paper Converting Mach. Co., 2012 WI
30, ¶22, 339 Wis. 2d 291, 811 N.W.2d 351.
17
The defendant and the State agree that the court should
rule that involuntary medication orders are immediately
appealable. They point out that, as a practical matter, if an
order that the defendant be treated to competency is not
immediately reviewable, the order is effectively unreviewable
because the defendant will have already been forced to undergo
involuntary medication or treatment while the appeal proceeds.
18
A non-final circuit court order is not appealable as of
right but only on leave of the court of appeals. Wis. Stat.
§ (Rule) 809.50.
12
No. 2016AP2017-CR
that disposes of the entire matter in litigation as to one or
more of the parties . . . ."
¶31 The order of the circuit court in the competency
proceeding at issue disposed of the entire matter in litigation
between the parties, namely the question of the defendant's
competency to assist with postconviction proceedings and the
defendant's competency to refuse medication or treatment. An
appeal of an involuntary medication order is best classified as
a final order from a special proceeding.
¶32 In Voss v. Stoll, 141 Wis. 267, 124 N.W. 89 (1910), we
explained that "[t]he test to be applied in determining the
nature of any judicial remedy, as regards whether it is a
special proceeding, is whether it is a mere proceeding in an
action, or one independently thereof or merely connected
therewith." Voss, 141 Wis. at 271 (emphasis added).
¶33 The competency proceeding is not part of the
defendant's underlying criminal proceeding; it is "merely
connected" to it. The competency proceeding resolves an issue
separate and distinct from the issues presented in the
defendant's underlying criminal proceeding. Thus, while the
criminal proceeding and the competency proceeding are "related"19
or "connected"20 to one another, the competency proceeding is
properly "treated as being commenced independently of any other
19
Ernst v. The Steamer "Brooklyn", 24 Wis. 616, 617 (1869).
20
Voss v. Stoll, 141 Wis. 267, 271, 124 N.W. 89 (1910);
Witter v. Lyon, 34 Wis. 564, 574 (1874).
13
No. 2016AP2017-CR
action or proceeding." State v. Alger, 2015 WI 3, ¶76, 360
Wis. 2d 193, 858 N.W.2d 346.
¶34 Thus, we conclude that the order determining
incompetency and, in the instant case, mandating involuntary
medication or treatment to restore competency is a final order
issued in a special proceeding and is appealable as of right
pursuant to Wis. Stat. § 808.03(1).21
IV
¶35 The third issue relates to the court of appeals'
denying the defendant's motion for a stay of the involuntary
medication order pending appeal.22
21
Concluding that involuntary medication orders are final
orders from special proceedings does not contradict our holding
in State v. Alger, 2015 WI 3, 360 Wis. 2d 193, 858 N.W.2d 346.
The Alger case involved petitions to discharge involuntary
commitments under Chapter 980. The Alger court held that those
petitions did not commence "actions" or "special proceedings"
because those petitions were continuations of the initial
underlying commitment proceeding. Alger, 360 Wis. 2d 193, ¶26.
The Alger decision did not overrule Voss v. Stoll, 141 Wis. 267,
124 N.W. 89 (1910); in fact, Alger partially relied on Voss.
Alger, 360 Wis. 2d 193, ¶¶29, 76.
In the instant case, the competency proceeding is not a
continuation of the defendant's underlying criminal case.
Indeed, the defendant's postconviction proceedings were
suspended during the pendency of the competency proceeding. The
competency proceeding in the instant case, unlike the discharge
petitions in Alger, resolved an issue separate and distinct from
the issues presented in the defendant's postconviction
proceedings.
22
See Wis. Stat. § 808.07, § (Rule) 809.12 (enabling the
court of appeals to grant relief from a circuit court order
pending appeal).
14
No. 2016AP2017-CR
¶36 In determining whether to grant relief pending appeal,
the court of appeals exercises its discretion. An appellate
court reviews a circuit court's order on a motion for stay for
an erroneous exercise of discretion. Weber v. White, 2004 WI
63, ¶18, 272 Wis. 2d 121, 681 N.W.2d 137.
¶37 In the instant case, the court of appeals did not
explain its reasons for exercising its discretion to deny the
defendant's motion for a stay of the involuntary medication
order pending appeal.
¶38 Our jurisprudence governing the proper exercise of
circuit court discretion is instructive in determining whether
the court of appeals must explain the reasons underlying its
discretionary decision-making. The case law is clear that a
circuit court's discretionary decision "is not the equivalent of
unfettered decision-making."23 When a circuit court exercises
its discretion, it must explain on the record its reasons for
its discretionary decision "to ensure the soundness of its own
decision making and to facilitate judicial review."24
¶39 The circuit court's explanation on the record of its
exercise of discretion must demonstrate that the circuit court
examined the relevant facts, applied a proper standard of law,
and used a rational process to arrive at a conclusion that a
23
Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16
(1981); see also Klinger v. Oneida Cty., 149 Wis. 2d 838, 846,
440 N.W.2d 348 (1989).
24
Klinger, 149 Wis. 2d 838, 847, 440 N.W.2d 348 (1989).
15
No. 2016AP2017-CR
reasonable judge would make.25 If a circuit court fails to
explain its exercise of discretion on the record, it has
erroneously exercised its discretion.26
¶40 The parties have not offered any case (and we have
found none) that requires the court of appeals to explain the
reasons underlying its discretionary decisions. However, the
justification that this court has relied upon to require a
circuit court to explain its discretionary decision-making
applies equally to the court of appeals. The court of appeals
should explain its discretionary decision-making to ensure the
soundness of that decision-making and to facilitate judicial
review.
¶41 We therefore conclude that the court of appeals'
failure to explain its exercise of discretion in the instant
case is an erroneous exercise of discretion.
V
¶42 Before concluding, we address the fourth and final
issue: whether involuntary medication orders should be stayed
automatically pending appeal as suggested by Scott.
¶43 Pursuant to Article VII, Section 3 of the Wisconsin
Constitution, this court has superintending authority "that is
indefinite in character, unsupplied with means and
25
Weber v. White, 2004 WI 63, ¶18, 272 Wis. 2d 121, 681
N.W.2d 137.
26
State ex rel. Johnson v. Williams, 114 Wis. 2d 354, 356-
57, 338 N.W.2d 320 (1983).
16
No. 2016AP2017-CR
instrumentalities, and limited only by the necessities of
justice." Arneson v. Jezwinski, 206 Wis. 2d 217, 225, 556
N.W.2d 721 (1996). Pursuant to that authority, we hereby order
that involuntary medication orders are subject to an automatic
stay pending appeal.
¶44 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.
Sell, 539 U.S. at 177 (quoting Washington v. Harper, 494 U.S.
210, 221 (1990)).
¶45 The State shall have the opportunity to move to lift
the stay, and the merits of the State's motion shall be governed
by the legal standard set forth in State v. Gudenschwager, 191
Wis. 2d 431, 529 N.W.2d 225 (1995), as modified by the instant
opinion.
¶46 In Gudenschwager, we explained that a stay pending
appeal is appropriate where the moving party:
(1) makes a strong showing that it is likely to
succeed on the merits of the appeal;
(2) shows that, unless a stay is granted, it will
suffer irreparable injury;
(3) shows that no substantial harm will come to other
interested parties; and
(4) shows that a stay will do no harm to the public
interest.
17
No. 2016AP2017-CR
Gudenschwager, 191 Wis. 2d at 440. However, because involuntary
medication orders are automatically stayed pending appeal, these
factors must be slightly modified to accurately explain what the
State must show in its motion to lift the stay.
¶47 On a motion to lift an automatic stay pending appeal
of an involuntary medication order, the State must:
(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;
(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.
¶48 Whether to grant the State's motion is a discretionary
decision, and as we explained above, the court of appeals must
explain its discretionary decision to grant or deny the State's
motion.
VI
¶49 Because the procedure mandated by this court in Debra
A.E. was not followed in the instant case, we conclude, as did
the State, that the involuntary medication order was issued
prematurely and is invalid. We reverse the order of the circuit
court and remand the cause to the circuit court for proceedings
consistent with this opinion.
¶50 By the Court.—The order of the circuit court is
reversed and the cause remanded.
18
No. 2016AP2017-CR
1