Milwaukee County v. R.T.H., 2019AP1763, 10/12/21, District 1 (1-judge opinion, ineligible for publication); case activity
This decision raises an important question of first impression: Are appeals from expired involuntary medication orders ever moot? The court of appeals holds that once the involuntary med order expires, it doesn’t have to address the merits of a claim that there was insufficient evidence to support the order. We think the court of appeals is wrong. Let’s hope that “Robert” files a petition for review.
In March 2018, the circuit court recommitted Robert for 12 months and ordered the involuntary administration of medication. Robert appealed but his appeal was stayed several times pending SCOW decisions in other Chapter 51 cases. By the time briefing began his recommitment and his involuntary med order had long expired. He decided to pursue just one issue: Whether there was sufficient evidence to support the circuit court’s order for involuntary medication.
The court of appeals noted that the circuit court record contained testimony that Robert was not competent to make medication decisions. But it did not describe the nature of his sufficiency of the evidence challenge. It just dismissed his appeal as moot.
The court of appeals said that “delays in the appellate process alone do not preserve an issue without exceptional circumstances.” Opinion, ¶13. It further noted that SCOW already addressed the procedures that circuit courts should apply when considering involuntary medication orders so a court of appeals’ decision would not clarify the law. Id. (citing Outagamie County v. Melanie L., 2013 WI 67, ¶37, 349 Wis. 2d 148, 833 N.W.2d 607).
A person has a significant, constitutionally protected liberty interest in avoiding unwanted antipsychotic medication. Winnebago County v. C.S., 2020 WI 33, ¶30, 391 Wis. 2d 35, 940 N.W.2d 875; State v. Scott, 2018 WI 74, ¶44; 382 476, 914 N.W.2d 141; Sell v. United States, 539 U.S. 166, 177 (2003); Washington v. Harper, 494 U.S. 210, 221 (1990). A person has this right because involuntary medication is a government intrusion into his body. Antipsychotic medication is sedating. It alters his mind. And it can cause serious health effects such as rapid weight gain, diabetes, permanent tremors or facial twitches, and even death (to name just a few effects). SCOTUS has acknowledged as much in cases like Harper, 494 U.S. at 230.
There are many good reasons why an appeal from an expired involuntary medication order should never be moot. 1. Dismissal of the appeal tells the County: “As long as your involuntary med orders expire before we get around to reviewing them you can keep overriding people’s liberty interests based insufficient evidence.” As SCOTUS said about an appeal from a minor conviction after the defendant completed his sentence: “We do not believe the Constitution contemplates that people deprived of constitutional rights at this level should be left utterly remediless and defenseless against repetitions of unconstitutional conduct.” Sibron v. New York, 392 U.S. 40, 52-53.
2. A person might still be suffering from the psychological trauma of being pinned down and jabbed with a needle and from the physical effects of antipsychotic medication even after the involuntary medication order expires. The sufficiency of the County’s evidence to support involuntary medication would sure feel like a live issue to him.
3. Once a court orders involuntary medication it is extremely hard to avoid future involuntary medication orders. The government can point to the absence of undesirable conduct while an order is in effect to justify endless future orders.
4. § 51.61(1)(h) provides that a person has the right to be free from unnecessary and excessive medication. If an involuntary medication order was not supported by sufficient evidence then, arguably, it was unnecessary or excessive. The person may have a claim for violation of his rights under §51.61(7). A court of appeals decision reversing an involuntary medication order for insufficient evidence could help support the person’s claim.
7. The fact that a court has ordered involuntary medication does not necessarily remain confidential. Sections 51.30(3) and (4) recognize over a dozen exceptions to a person’s right to the confidentiality of Chapter 51 records. SCOTUS has said that the fact that a person has been declared mentally ill and dangerous enough to be committed is stigmatizing. Addington v. Texas, 441 U.S. 418, 426 (1979). Surely the same is true for a finding that the person is mentally ill and dangerous enough to be involuntarily medicated.
Finally, does it really matter whether SCOW set out the procedure circuit courts should use when ordering involuntary meds in Melanie L.? Isn’t the question whether the circuit court followed those procedures? And wouldn’t a decision explaining that this type of evidence is either sufficient or insufficient provide some guidance to counsel and the circuit courts in future cases?
