State v. N.K.B., 2023AP722-CR, 10/1/24, District I (recommended for publication); case activity
N.K.B. (referred to as Naomi) was found incompetent to proceed on her criminal charges. The circuit court authorized involuntarily administering medication to Naomi because she was dangerous. Naomi argued on appeal that the circuit court did not have authority to authorize involuntarily medicating her based only on dangerousness. In a recommended-for-publication decision, the COA vacated the circuit court’s order authorizing involuntary medication: “Defendants committed under § 971.14 cannot be involuntarily medicated based on dangerousness absent the commencement of proceedings under ch. 51 or some other statute that authorizes involuntary medication based on the defendant’s dangerousness.” (¶ 20).
The Court framed the “sole question” on appeal as “whether the circuit court had the authority – statutory or otherwise – to order Naomi involuntarily medicated based on its finding that she was dangerous and without applying the Sell factors.” (¶17). In Sell (2003), the U.S. Supreme Court held that, before forcibly medicating an accused person to competency to stand trial, the State must show: 1) the government has an important interest in proceeding to trial; 2) involuntary medication will significantly further the government’s interest; 3) involuntary medication is necessary to further the governmental interest; and 4) involuntary medication is medically appropriate. Id. at 180-181. Instead of Sell, the circuit court relied on SCOTUS’s decision in Washington v. Harper (1990), which held that the Due Process Clause permits a state to treat a prison inmate with a serious mental illness with antipsychotic drugs against his or her will if the inmate is dangerous to himself or others. Id. at 227.
The Court rejected the circuit court’s interpretation of Sell and Harper as establishing an independent judicial basis for involuntarily medicating Naomi based on its finding that she was mentally ill and dangerous. Although Sell referred to “strong reasons for a court to determine whether forced administration of drugs can be justified on these alternative grounds” (referring to dangerousness), the Court concluded that “Sell’s reference to ‘alternative grounds’ for involuntary medication references state statutory schemes authorizing forced medication for purposes other than rendering the defendant competent to stand trial.” (¶ 25). The Court found that Wisconsin requires statutory authority before issuing an involuntary medication order and “[n]othing in Harper or Sell implies that a court may order involuntary medication based on dangerousness when a state requires statutory authority to issue such orders and has set forth specific procedures for doing so in other statutory provisions.” (¶ 26).
And the Court did not find statutory authority for the circuit court to issue an involuntary medication order for Naomi. Regarding the State’s argument that authority rested in Wis. Stat. § 51.61(1)(g)1. and 3. because individuals committed under chapter 971 are “patients” for purposes of § 51.61, the Court found that the involuntary medication provisions in § 51.61 “apply to patients only if the legislature has not provided an ‘alternative provision.’” (¶ 34) (quoting Anthony D.B.(Wis. 2000)). Because the legislature created in § 971.14(3)(dm) and (4)(b) a “separate, alternative involuntary medication procedure and these statutes do not authorize involuntary medication based on a person’s dangerousness,” § 51.61 did not authorize the involuntary medication order. (¶ 34).
Nor did the Court find authority to issue the involuntary medication order under Wis. Stat. § 971.14(2)(f), on which the circuit court relied in part. Section 971.14(2)(f) states that a defendant ordered to undergo a competency examination “may refuse medication and treatment except in a situation where the medication or treatment is necessary to prevent physical harm to the defendant or others.” The Court found that “the plain language of the statute makes it clear that it does not apply after a competency decision has been made and commitment has been ordered.” (¶42).
The Court concluded: “Incompetent defendants committed under § 971.14 cannot be involuntarily medicated based on dangerousness absent the commencement of proceedings under Wis. Stat. ch. 51 or some other statute that authorizes involuntary medication based on the individual’s dangerousness.” (¶ 45). Because no “parallel proceedings were commenced against Naomi,” the “only statute under which she was committed was Wis. Stat. § 971.14, and that statute did not authorize the circuit court to order involuntary medication based on Naomi’s dangerousness. It was required to follow the involuntary medication provision under § 971.14 and apply the Sell factors, but it did not do so.” (¶ 46).
