State v. M. M. K.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 31, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2024AP591-CR Cir. Ct. Nos. 2023CM243
2023CM244
2024AP592-CR 2023CM355
2024AP593-CR 2023CM360
2024AP594-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

M. M. K.,

DEFENDANT-APPELLANT.

APPEALS from orders of the circuit court for Portage County:
LOUIS J. MOLEPSKE, JR., Judge. Affirmed.

APPEALS from orders of the circuit court for Portage County:
MICHAEL D. ZELL, Judge. Reversed.
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

¶1 GRAHAM, J.1 M.M.K., who was charged with five misdemeanor
counts of violating a harassment injunction, was determined to be incompetent to
proceed to trial. In each of M.M.K.’s criminal cases, the circuit court entered an
order committing her to the state department of health services for treatment to
competency, and a separate order authorizing the involuntary administration of
medication. M.M.K. challenges both sets of orders on appeal.2 I affirm the orders
that found M.M.K. incompetent and committed her for treatment, and I reverse the
involuntary medication orders.3

BACKGROUND

¶2 The State filed four criminal complaints against M.M.K., all alleging
that she violated a harassment injunction over a several-month period in 2023. See
WIS. STAT. § 813.125(4). The injunction prohibited M.M.K. from contacting her
then-husband or posting about him or their child on social media. The complaints
collectively alleged that M.M.K. violated the injunction by sending emails to her
husband, which claimed he was abusive, and by making social media posts that
mentioned her husband, some of which claimed that he was mentally ill, unstable,
and withholding their child from M.M.K.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version.
2
These appeals were consolidated for briefing and disposition by an order dated
March 28, 2024. See WIS. STAT. RULE 809.10(3).
3
M.M.K. has since been discharged from her commitment and is no longer subject to the
involuntary medication order. The parties agree that this appeal should be decided on the merits,
even if any of the issues on appeal are arguably moot.

2
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

¶3 During the pretrial proceedings, questions were raised about
M.M.K.’s competency. Under WIS. STAT. § 971.13(1), “[n]o person who lacks
substantial mental capacity to understand the proceedings or assist in his or her
own defense may be tried, convicted, or sentenced for the commission of an
offense so long as the incapacity endures.” “[W]henever there is a reason to doubt
a defendant’s competency to proceed,” a circuit court “shall” order competency
proceedings after finding probable cause that the defendant committed the charged
offense. WIS. STAT. § 971.14(1r)(a), (c). If the court determines that a defendant
is incompetent but may be restored to competency through treatment, the court
“shall suspend the [criminal] proceedings and commit the defendant to the custody
of the department [of health services] for treatment,” and the department has a
limited window of time to attempt to restore the defendant’s competency.
§ 971.14(5)(a)1.4

¶4 Separately, and subject to legal standards that are discussed at length
below, the department may file a motion asking the court to enter an order that
allows the department to involuntarily administer medication to restore the
defendant to competency. See Sell v. United States, 539 U.S. 166 (2003); WIS.
STAT. § 971.14(5)(am).

¶5 Here, the circuit court ordered a competency examination, and the
examining evaluator indicated that M.M.K. may have a delusional disorder.

4
Specifically, WIS. STAT. § 971.14(5)(a)1. provides that the treatment period is “not to
exceed 12 months, or the maximum sentence specified for the most serious offense with which
the defendant is charged, whichever is less.” Here, the maximum sentence for each of the
charges was nine months, WIS. STAT. § 813.125(7), and I refer to this nine-month window as the
“statutory time frame” or “statutory period.”

3
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

However, the evaluator was unable to offer an opinion to a reasonable degree of
professional certainty about M.M.K.’s capacity to understand court proceedings or
her ability to assist in her defense. The court ordered an inpatient examination,
which took place at Mendota Mental Health Institute (“Mendota”). See WIS.
STAT. § 971.14(2). Danielle Calas, a licensed clinical psychologist with a
doctorate in clinical psychology, examined M.M.K. and diagnosed her with
“[u]nspecified schizophrenia spectrum and other psychotic disorder.” Dr. Calas
opined that M.M.K. lacked the capacity to understand the criminal proceedings
against her and assist in her defense, but was likely to be restored to competency
within the statutory period. Dr. Calas recommended inpatient treatment to restore
M.M.K. to competency, and further recommended that the department pursue an
order for involuntary administration of medication and treatment.

¶6 The county department of health services filed a separate motion
seeking an order that would allow for the involuntary administration of medication
in order to treat M.M.K. to competency. Along with the motion, the department
filed a report and proposed treatment plan that had been authored by Dr. Candace
Cohen, a board certified psychiatrist who is employed by Mendota.

¶7 The circuit court addressed the issues regarding competency and
involuntary medication during two separate hearings, both contested. See WIS.
STAT. § 971.14(4). As discussed at greater length below, during the first hearing,
which I refer to as the “commitment hearing,” the court determined that M.M.K.
was not competent to stand trial, and it committed her to the department’s custody
for treatment. And then during the second hearing, which I refer to as the
“involuntary medication hearing,” the court authorized the involuntary
administration of medication.

4
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

¶8 The commitment hearing took place on March 12, 2024, with the
Honorable Louis J. Molepske presiding. Dr. Calas was the only witness, and she
testified that she based her opinions on her interview and encounters with M.M.K.,
staff observation and documentation, and other records. Dr. Calas testified that
M.M.K. “understands the legal proceedings,” but that she lacked insight into what
was real and what was not, and her “perception of the events that led to her
charges” precluded her from having the “ability to make an independent
autonomous decision or apply the facts” to her criminal cases. Dr. Calas opined
that, in her opinion, M.M.K. could be restored to competency through treatment,
and that the likelihood of treatment being effective would be higher if it included
the administration of psychotropic medication.

¶9 The circuit court issued an order finding M.M.K. incompetent and
committing her to the department’s custody for treatment. It found that M.M.K.
was intelligent and understood the court proceedings, but that she lacked the
capacity to assist in her defense. As discussed in greater detail below, the court
found that Dr. Calas’s report and testimony showed “by the clear, satisfactory and
convincing evidence that [M.M.K.] is not competent to proceed at this time,” but
that M.M.K. would regain competency “within the statutory time frame.”

¶10 The involuntary medication hearing took place on March 26, 2024,
with the Honorable Michael D. Zell presiding. At that hearing, the parties agreed
that the applicable legal standards are set forth in Sell, 539 U.S. 166. There, the
United States Supreme Court emphasized that criminal defendants have “a
‘significant’ [and] constitutionally protected ‘liberty interest’ in ‘avoiding the
unwanted administration of antipsychotic drugs.’” Id. at 178 (citation omitted).
The Court further determined that, before forcibly medicating an accused person

5
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

to competency to stand trial, the State must prove by clear and convincing
evidence that: (1) the State has an important interest in proceeding to trial;
(2) involuntary medication will significantly further the State’s interest;
(3) involuntary medication is necessary to further the State’s interest; and
(4) involuntary medication is medically appropriate. Id. at 180-81. In addition to
these Sell factors, Wisconsin statutes also require the State to prove that the
accused person is not competent to refuse medication. WIS. STAT.
§ 971.14(3)(dm) and (4)(b).

¶11 During the involuntary medication hearing in M.M.K.’s case, the
parties disputed whether the State met its burden on the first Sell factor. As
discussed at greater length below, to satisfy that factor, the State must show an
interest in “bringing to trial an individual accused of a serious crime,” and the
parties disputed whether the crimes that M.M.K. allegedly committed were
sufficiently “serious” to satisfy this factor. Sell, 539 U.S. at 180. The parties also
disputed whether the State met its burden to prove the remaining Sell factors.

¶12 At the end of the involuntary medication hearing, the circuit court
determined that “the charges are serious in the sense that is contemplated by Sell
and other cases interpreting that language.” The court further determined that “the
involuntary administration of medication will significantly further important
government interests because it is likely to render [M.M.K.] competent to stand
trial, and is substantially unlikely to have side effects that undermine the fairness
of the trial by interfering with [her] ability to assist counsel.” Finally, the court
determined that “the involuntary administration of medication or treatment is
necessary because alternative, less intrusive treatments are unlikely to achieve

6
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

substantially the same results.” The circuit court entered an involuntary
medication order.

¶13 M.M.K. appealed the commitment order and the involuntary
medication order, and we granted M.M.K.’s motion for a stay of the involuntary
medication order pending disposition of this appeal.5

DISCUSSION

¶14 On appeal, M.M.K. challenges the competency determination that
the circuit court made at the commitment hearing,6 and she further challenges the
involuntary medication order that the court entered following the involuntary
medication hearing. I address these challenges in turn.

I

¶15 Competency is a “judicial inquiry, not a medical determination,” and
a court’s task at a contested commitment hearing is to determine whether the
evidence shows that “the defendant can understand the proceedings and assist

5
After M.M.K. filed her notice of appeal, she was again evaluated at Mendota, and the
evaluator opined, among other things, that it was unlikely that she would be “restored to
adjudicative competence within the statutory period.” The evaluator further opined that M.M.K.
had not presented as a danger to herself or others, nor did she have a history of dangerousness—
as such, the evaluator did not recommend further action, which could have included evaluation
for potential commitment pursuant to WIS. STAT. § 51.20. Following a May 10, 2024 hearing,
the circuit court discharged M.M.K. from commitment and dismissed the criminal matters against
her without prejudice. As mentioned, neither party argues that the appeal should be dismissed on
mootness grounds.
6
As discussed, during the commitment hearing, the circuit court also determined that
M.M.K. could be restored to competency with treatment during the statutory period. M.M.K.
does not challenge this determination on appeal, and I discuss it no further.

7
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

counsel ‘with a reasonable degree of rational understanding.’” State v. Byrge,
2000 WI 101, ¶31, 237 Wis. 2d 197, 614 N.W.2d 477 (citation omitted). “A
competency determination is functionally a factual finding,” and therefore, my
review of the circuit court’s competency determination is for erroneous exercise of
discretion. State v. Smith, 2016 WI 23, ¶26, 367 Wis. 2d 483, 878 N.W.2d 135.

¶16 Here, as noted, the circuit court found that M.M.K. was intelligent
and understood court proceedings, but that she lacked the capacity to assist in her
defense. More specifically the court found that M.M.K. understood fundamental
aspects of court proceedings such as the roles of the judge, the prosecutor, and the
defense attorney, and she could articulate the meaning of different types of pleas.
However, the court credited the testimony that M.M.K.’s untreated schizophrenia
and other psychiatric disorders and the delusions that she experienced as a result
of those disorders “clouds her ability to fully understand [certain] aspect[s] of
assisting in her own defense.”

¶17 This determination finds support in the evidence introduced at the
commitment hearing. Specifically, Dr. Calas testified that it was difficult to talk to
M.M.K. about the criminal cases because her delusions resulted in her having
“fixed false beliefs that are so tightly held that she’s traumatized by them.”
Dr. Callas further testified that, “when you try to explain to her the truth, she
becomes very intense and very upset,” and “very difficult to redirect.” One of
M.M.K.’s false beliefs was that she and her family were being trafficked, and
another was that she was the daughter of the British monarch Queen Elizabeth and
the Russian president Vladimir Putin. M.M.K. believed that she was being
persecuted, including by the filing of the criminal charges in these cases, as a
result of her lineage. The court noted that, to adequately prepare for trial and

8
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

effectively represent M.M.K. during trial, her attorney would need to gather
factual information about the charged offenses, and that M.M.K.’s delusions
would make it difficult to gather that information. As the court explained:

[W]hen you [defense counsel] lean over, for example,
during trial, and the State’s going into some area of the
facts, hypothetically, and you may ask [M.M.K.], tell me
about that because I don’t recall seeing that in the police
report, and she starts talking about her father, President
Putin, and her mother, Queen Elizabeth, that’s not going to
assist in her defense.

You’re going to be needing information from her in
order to make objections, present her defense and further
assist in that with you as the practitioner. That’s the area
that is a concern of the Court, and that’s what the doctors
testified to.

¶18 M.M.K. does not challenge that the circuit court had discretion to
credit Dr. Calas’s testimony on these points. Nor does she dispute that Dr. Calas’s
testimony was sufficient to support a determination that M.M.K. lacked the
capacity to assist in her defense. The record makes clear that the circuit court
relied on Dr. Calas’s testimony when it made its competency determination, and
that the court’s decision was a reasoned application of the law to the facts. I
therefore conclude that the circuit court properly exercised its discretion.

¶19 In arguing to the contrary, M.M.K. contends that the circuit court
erroneously relied on the fact that a motion for involuntary medication had been
filed when it made its competency determination. Generally speaking, I agree
that, had the court based its determination that M.M.K. was incompetent on the
mere filing of an involuntary medication request, that might constitute an
erroneous exercise of discretion. However, for reasons I now explain, I conclude
that the circuit court did not do so here.

9
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

¶20 To support her assertions, M.M.K. points to portions of the
commitment hearing transcript in which the circuit court commented on the
pending motion for involuntary medication. At one point during its ruling, the
court acknowledged that, although it would be “premature” to make a decision on
the involuntary medication request, Dr. Cohen’s report stated that M.M.K.
“requires involuntary medication in order to gain competency.” The court stated
that the fact that “a medical doctor” authorized that request “is indicating that
there is something significant going on for [M.M.K.]”7 Then, after relying on
Dr. Calas’s testimony to determine that M.M.K. would not be able to assist in her
own defense, the court stated:

[T]he Court is finding that there is a substantial
competency issue such that the doctors have already
requested that she be involuntarily treated, which of course
we have not heard Dr. Cohen yet, but to file this motion
under the statute, you have to have a legal basis under
[WIS. STAT. §] 971.14(5) that she is not competent, cannot
rationalize the benefits, the pros/cons of taking medication,
pros/cons of being treated such that it’s clinically affecting
her stability and … mental health at this stage in this
criminal case[.] … [T]here is … an inference the Court
can take from that that the—this one examiner, Dr. Calas,
the psychologist, and the medical doctor, … Dr. Cohen’s
request, that that is assisting this Court, that Dr. Calas’[s]
one time meeting her, being present for the intake review
and also reviewing the medical record, that in her opinion
[M.M.K.] does lack substantial capacity to understand the
proceedings and/or assist in her own defense but she’s
likely to be restored within the statutory time period, and
the Court so finds.

7
This case may present a somewhat unusual scenario for treatment-to-competency cases.
As I understand it, in many cases, a motion for involuntary medication will not be filed until after
the circuit court has already determined that the defendant is not competent for trial purposes and
has committed the defendant to the department’s custody for treatment.

10
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

¶21 M.M.K. argues that the above-quoted portion of the transcript
demonstrates that the circuit court improperly relied on the fact that a motion for
involuntary medication had been filed when it found her incompetent. I do not
read the court’s comments as M.M.K. reads them. Instead, I interpret the court’s
comments as merely anticipating that Dr. Cohen’s future testimony regarding
involuntary medication might provide additional support for a determination that
M.M.K. was not competent to assist in her defense. The fact that the court
commented on the existence of Dr. Cohen’s report does not mean that the court
unduly relied on that report when it made the competency determination. As
explained above, the record shows that the court relied on Dr. Calas’s testimony in
finding M.M.K. incompetent, not the pending motion for involuntary medication.
As such, I reject M.M.K.’s argument and conclude that the circuit court did not
erroneously exercise its discretion.

II

¶22 I now turn to the involuntary medication order, which M.M.K.
challenges on two grounds. She argues that the crimes she was charged with are
not sufficiently serious to satisfy the first Sell factor, and that the treatment plan
was not sufficiently individualized to satisfy the remaining factors. As I now
explain, the State failed to satisfy its burden of proof on the first Sell factor;
therefore, I need not address M.M.K.’s arguments about the remaining factors.
See Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436,
842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised
by the parties when one issue is dispositive.”).

11
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

¶23 I begin by restating what has been stated on many occasions.
“Under the Due Process Clause [of the United States Constitution], individuals
have ‘a significant liberty interest in avoiding the unwanted administration of
antipsychotic drugs.’” State v. Fitzgerald, 2019 WI 69, ¶13, 387 Wis. 2d 384, 929
N.W.2d 165 (citation omitted). To “override” that liberty interest, it is not enough
for the government to prove that the forced administration of medication would be
“medically appropriate” and the “only viable hope” for restoring the individual to
competency. See Sell, 539 U.S. at 174 (citation omitted). “‘Only an essential or
overriding state interest’ can overcome [the defendant’s] constitutionally-protected
liberty interest.” Fitzgerald, 387 Wis. 2d 384, ¶13 (citation omitted). Indeed, the
Sell Court noted that it “may be rare” circumstances that justify forced medication
“solely for trial competence purposes.” Sell, 539 U.S. at 180.

¶24 As mentioned, my focus here is on the first Sell factor, which
addresses the governmental interest at stake. This factor considers whether the
government has an “important” interest in prosecuting M.M.K. for “serious, but
nonviolent, crimes.” Sell, 539 U.S. at 169, 180; see also State v. Green, 2021 WI
App 18, ¶16, 396 Wis. 2d 658, 957 N.W.2d 583.

¶25 At this point, it is worth belaboring this discussion about the nature
of the governmental interest in a treatment-to-competency case, because that is the
“particular” interest that must override the defendant’s liberty interest in refusing
medication. See Sell, 539 U.S. at 181. In such cases, the pertinent governmental
interest is not to protect M.M.K.—that is, the objective of treatment is not to
ameliorate the risk that M.M.K.’s untreated mental illness poses to her own safety
and wellbeing. Instead, the pertinent governmental interest is prosecutorial—to
remove a barrier (legal incompetency) that makes it unconstitutional to prosecute

12
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

M.M.K., thereby allowing the State to move forward with criminal proceedings
and potentially to hold M.M.K. criminally responsible for her conduct. This is
why the first Sell factor turns on whether the crimes that the State wants to
prosecute M.M.K. for are “serious,” and more specifically, whether they are
sufficiently serious to override her liberty interest in refusing medication. See id.
at 180-81. Additionally, even if we determine the crimes at issue are “serious,”
we consider whether there are circumstances that mitigate the State’s interest in
prosecution. See id.; Fitzgerald, 387 Wis. 2d 384, ¶26; State v. J.D.B., ___ WI
App ___, ¶37, ___ Wis. 2d ___, ___ N.W.3d ___.

¶26 Here, in the course of rendering its decision, the circuit court
observed that the precedential cases do not provide any “clear definition” of
“seriousness” for courts to apply in these situations. That is a fair critique of the
case law, and under the circumstances, courts may reasonably perceive a lack of
guidance on this important constitutional issue. Indeed, in the two Wisconsin
cases that have analyzed and applied the first Sell factor, the defendants were
charged with battery; thus, there was an aspect of violence to the crimes at issue in
those cases. See J.D.B., ___ Wis. 2d ___, ¶53 (under the circumstances, Sell did
not allow the State to forcibly medicate a defendant charged with battery to a law
enforcement officer); State v. Anderson, No. 2020AP819-CR, unpublished slip
op. (WI App. Mar. 16, 2021), rev’d on other grounds by 2023 WI 44, 407 Wis. 2d
428, 990 N.W.2d 771 (under the circumstances, the State could forcibly medicate

13
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

a defendant charged with battery).8 Consequently, the courts in those cases did
not squarely consider the “rare” circumstance that would justify involuntary
medication to restore a defendant’s competency to be prosecuted for “serious, but
nonviolent, crimes.” See Sell, 539 U.S. at 169, 180.

¶27 Turning back to M.M.K.’s case, the circuit court explained its
decision on the first Sell factor as follows: “Seriousness can be defined in a
number of ways and, in this situation,” M.M.K.’s “mental illness is manifested by
what’s essentially a campaign of statements … in violation of a restraining order,”
which resulted “in the ongoing harassment, intimidation, and illegal violation of
[her then-husband’s] sanctity and their right to be left alone.” The court
acknowledged that M.M.K. had not “directly threatened physical harm,” but
further stated that her husband “has a right to be free from” such harassment. The
court commented that “any rational and objective person” in his position might be
afraid, knowing that M.M.K. “has a serious mental illness and is delusional, and
not, frankly, knowing what she’s capable of, given her delusional reports and
allegations.” Thus, the court explained, “the ongoing and continuous harassment
of [M.M.K.’s husband] is serious to the Court.”

¶28 I agree with many of the underlying sentiments that the circuit court
expressed. The State has a strong interest in protecting victims of harassment, and

8
We cite this authored, unpublished, one-judge opinion for its persuasive value pursuant
to WIS. STAT. RULE 809.23(3)(b). Notably, after Anderson successfully petitioned for review of
the court of appeals’ decision, Anderson abandoned his argument about the first Sell factor, and
the State conceded that it failed to satisfy its burden of proof on the remaining Sell factors. Our
supreme court summarily reversed this court’s decision on the basis of the State’s concession.
See State v. Anderson, 2023 WI 44, ¶1, 407 Wis. 2d 428, 990 N.W.2d 771.

14
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

in prosecuting violations of injunction orders. The charges against M.M.K. are
“serious” in the sense that all harassing conduct has the potential to cause serious
concerns for the person who is targeted by the harassment, and to disrupt that
person’s life. Harassing conduct also has the potential to escalate, and should be
taken seriously both by law enforcement and the court system alike. These
legitimate concerns gain even more force in a situation in which the person
accused of harassment has previously been warned against engaging in the
conduct, such as through the issuance of an injunction order. For all of these
reasons, the State has a substantial interest in protecting victims by enforcing
injunction orders and prosecuting conduct that violates those orders.

¶29 Even so, for reasons I now explain, I cannot conclude that the State
has met its burden in demonstrating that its interest in prosecuting M.M.K. for this
conduct is sufficient to override M.M.K.’s liberty interest in avoiding unwanted
medication. In other words, I conclude that the State has not met its burden to
demonstrate that the crimes at issue here and the individual facts of these cases are
sufficiently serious to satisfy the first Sell factor.

¶30 As this court has recently explained, there are two parts to an
analysis of the first Sell factor. See J.D.B., ___ Wis. 2d ___, ¶¶36-37, 39. A court
considers whether the legislature deems the crime to be serious, id., ¶36, and also
“consider[s] the facts of the individual case in evaluating the State’s interest in the
prosecution,” because “[s]pecial circumstances may lessen the importance of that
interest,” id., ¶37 (citation omitted).

¶31 When evaluating whether the legislature considers the charged crime
to be “serious,” courts have considered how the legislature has designated the

15
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

crime and the maximum amount of incarceration that could be ordered if the
defendant were convicted. See id., ¶36; United States v. Breedlove, 756 F.3d
1036, 1041 (7th Cir. 2014) (“the maximum statutory penalty reflects at least some
measure of legislative judgment regarding the seriousness of a crime”). Applying
that approach here, the charges against M.M.K. are for misdemeanors rather than
felonies, and the crimes are not included in the list of “serious” crimes found in
any Wisconsin statute.9 And the maximum jail sentence for each of the counts
M.M.K. was charged with is nine months. See WIS. STAT. §§ 813.125(7), 939.51
(equating a nine-month maximum sentence with a Class A misdemeanor); cf.
United States v. Valenzuela-Puentes, 479 F.3d 1220, 1226 (10th Cir. 2007)
(compiling cases of offenses with maximum penalties of 10, 20, and 50 years that
have been considered “serious” for treatment-to-competency purposes).10

9
See WIS. STAT. §§ 48.685(1)(c), 50.065(1)(e)1. and 2., 969.08(10)(b) (defining “serious
crime”); WIS. STAT. §§ 48.415(9m)(b), 302.11(1g), 939.62(2m)(a)2m., 973.0135(1)(b) (defining
“serious felony”).
10
In one nonbinding decision of this court, the State cited two federal cases for the
proposition that “a crime for which the punishment is over six months is considered a serious
crime.” State v. Anderson, No. 2020AP819-CR, ¶22 (Wis. Ct. App. March 16, 2021) (citing
Baldwin v. New York, 399 U.S. 66, 70-71 (1970); United States v. Palmer, 507 F.3d 300, 304
(5th Cir 2007)). Although the Anderson court appeared to find that argument persuasive, I do
not. In Anderson, the cases that the court cited to support a six-month rule of thumb were
considering “seriousness” in an entirely different context—whether the charges were “serious”
enough to conclude that the defendant had a constitutional right to a jury trial. Anderson,
No. 2020AP819-CR, ¶22. For instance, in Baldwin, the Court took on the “essential if not
wholly satisfactory task” of “determining the line between ‘petty’ and ‘serious’ for purposes of
the Sixth Amendment right to jury trial,” and the Court settled on six months. Baldwin, 399 U.S.
at 68-69. And in Palmer, while the court considered the analysis of seriousness under Sell, it
similarly relied on cases that analyzed seriousness in the jury trial context. Moreover, the crimes
that Palmer had allegedly committed—threatening the life of a law enforcement officer and
causing substantial disruption on or near a university campus—do not lend support to the six-
month rule of thumb in this context as the crimes were subject to a maximum sentence of 10
years. Palmer, 507 F.3d at 303-04.

16
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

¶32 Moving to the facts of the individual case, M.M.K.’s conduct
certainly qualifies as harassing, and it stands to reason that her then-husband
would have wanted that conduct to stop. However, while other violations of
harassment injunctions might reasonably be characterized as “serious” because the
conduct is dangerous or threatening, here, that characterization is not borne out by
the allegations in these cases.11 Indeed, Dr. Cohen specifically testified that, based
on her assessment of M.M.K., she did not consider M.M.K. to be dangerous.

¶33 The one factor that weighs in favor of the State’s interest in
prosecution is the sheer number of alleged violations of the harassment injunction,
and the repeated nature of M.M.K.’s conduct. I recognize that, in such
circumstances, the State’s options to meaningfully enforce an injunction order
may be limited, and that the State might conclude that treatment to competency
followed by prosecution is necessary to stop M.M.K. from harassing her then-
husband—at least for the period of time that she would be unable to engage in the
conduct due to her treatment-to-competency status and then, potentially, in jail
during the pendency of the criminal proceedings and part of any criminal sentence.
However, under the circumstances here, I cannot conclude that this interest is by

11
According to the allegations in the complaints, M.M.K. was charged with the
following conduct. In the first case, she was charged with making a social media post stating that
her family’s information had been sold to human traffickers, and that she needed “to get home to
[her] [then-]husband and kids [because her] husband has been struggling mentally and [the
human traffickers] used the system to isolate and attack my household.” In the second case, she
was charged with making and subsequently editing a social media post that stated that her
husband was “mentally unstable” and that her child was “being withheld by [the child’s] mentally
ill father.” In the third case, she was again charged with posting that her husband was mentally ill
and withholding their child. And in the fourth case, M.M.K. emailed her husband and accused
him of being “abusive” and stated that he “need[ed] to get out of [their] house.”

17
Nos. 2024AP591-CR
2024AP592-CR
2024AP593-CR
2024AP594-CR

itself sufficient to override M.M.K.’s liberty interest in avoiding unwanted
medication.

CONCLUSION

By the Court.—Orders affirmed; orders reversed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

18