State v. N. K. B.

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 1, 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 No. 2023AP722-CR Cir. Ct. No. 2023CF1417

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

N.K.B.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
DAVID C. SWANSON, Judge. Reversed.

Before Donald, P.J., Geenen and Colón, JJ.

¶1 GEENEN, J. Naomi1 appeals from an order of the circuit court
committing her to the custody of the Department of Health Services (“DHS”) and
1
For ease of reading and to protect the confidentiality of these proceedings, we use the
pseudonym “Naomi” to refer to the defendant in this case.
No. 2023AP722-CR

permitting the involuntary administration of medication under WIS. STAT.
§ 971.14 (2021-22)2 because she was dangerous to herself or others if not
medicated (the “involuntary medication order”). She argues that under § 971.14,
incompetent criminal defendants cannot be involuntarily medicated based on a
finding of dangerousness.

¶2 For the reasons set forth below, we agree with Naomi. Accordingly,
we reverse and direct the circuit court to vacate the involuntary medication order.

BACKGROUND

¶3 On January 27, 2023, Naomi allegedly struck a nurse and kicked a
law enforcement officer in the shin while at a psychiatric hospital. The following
day, the State charged Naomi with misdemeanor battery and obstructing an
officer. Naomi’s competency to proceed was raised at her first hearing, and an
examination was ordered. On March 7, 2023, the circuit court found Naomi
incompetent to proceed and ordered commitment for treatment at Mendota Mental
Health Institute (“Mendota”). Despite this order, Naomi was still in Milwaukee
County jail three weeks later when she allegedly slapped a nurse dispensing
medications. Naomi was charged with felony battery by a prisoner under WIS.
STAT. § 940.20(1). On April 4, 2023, at her first hearing on the felony charge, the
circuit court ordered a competency evaluation report and scheduled a competency
hearing for two weeks after the report was filed.

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

2
No. 2023AP722-CR

¶4 Prior to the competency hearing for the felony case, on April 14,
2023, DHS requested an involuntary medication order from the circuit court and
included a report and individualized treatment plan by Mendota psychiatrist
Dr. Kevin Murtaugh. Dr. Murtaugh opined in his report that, in addition to being
necessary for Naomi to regain competency, “involuntary administration of
medication(s) and treatment is needed because [Naomi] poses a current risk of
harm to self or others if not medicated or treated[.]” Three days later, on April 17,
2023, psychologist Jenna M. Krickeberg filed a competency evaluation report
which opined that Naomi was incompetent to proceed.

¶5 On April 26, 2023, the circuit court held a contested competency
hearing at which Dr. Krickeberg and Dr. Murtaugh testified.3 Dr. Krickeberg
testified that Naomi suffers from a mental illness and was incompetent to stand
trial because she lacked the capacity to aid, assist, or cooperate with counsel, to
understand counsel’s role and court proceedings, and to understand the gravity of
the charges against her. Dr. Krickeberg recommended that Naomi receive
inpatient treatment at Mendota and concluded that, with medication and treatment,
there is a substantial likelihood that Naomi would regain competency within the
statutory time frame. The circuit court found that Dr. Krickeberg’s testimony and
report established that Naomi was incompetent to proceed and concluded that the
likelihood of Naomi attaining competence would be “far more likely” with
medication.

3
The circuit court initially held a competency hearing on April 20, 2023, but because
Naomi contested the reports, the hearing was adjourned and rescheduled for a contested
competency hearing.

3
No. 2023AP722-CR

¶6 Dr. Murtaugh then testified about the involuntary medication
request. According to his testimony, Naomi suffered from a mental illness which
is treatable with psychiatric medications. He recommended two antipsychotic
medications: Quetiapine to be administered orally (100-800mg total per day), or
Haloperidol to be administered by injection (5-20mg total per day).4 He
recommended Haloperidol be administered by injection only if oral administration
of Quetiapine was refused. He discussed the side effects of each medication and
Naomi’s physical health conditions. He stated that there were no less intrusive
alternatives to involuntarily administering medication, and he observed that
although Naomi had a history of doing well while taking Quetiapine, there was no
injectable form of that medication should Naomi refuse to take it orally.

¶7 Dr. Murtaugh testified that he attempted to discuss the advantages,
disadvantages, and alternatives of medications with Naomi on three occasions, but
Naomi responded each time without meaningful engagement, “some smatterings
of profanity and just being asked to leave her alone.” He opined that the
medication would have a substantial likelihood of rendering Naomi competent and
concluded that Naomi was not competent to refuse because she could not express
an understanding of the risks and benefits of medication.

¶8 On April 27, 2023, the circuit court granted DHS’s request and
ordered involuntary medication. The circuit court analyzed the factors set forth in

4
In addition to these antipsychotic medications, Dr. Murtaugh also recommended
Lorazepam to be administered orally (2-6mg total per day to “reduce agitation/anxiety/treat
mania”) or by injection if oral administration was refused (2-4mg total per day to “reduce
agitation/anxiety”).

4
No. 2023AP722-CR

Sell v. United States, 539 U.S. 166, 180-81 (2003),5 and it concluded that they had
been satisfied. In doing so, the circuit court stated that it was guided by WIS.
STAT. § 51.61(1)(g).

¶9 On April 27, 2023, Naomi filed a notice of appeal and a motion to
stay the involuntary medication order. The circuit court then scheduled a
supplemental hearing for May 4, 2023, and granted a stay until that date. DHS
wrote a letter to the circuit court asking that it reconsider its stay decision because,
it alleged, Naomi was a danger to herself and others. Naomi responded, arguing
that the circuit court was not authorized to order involuntary medication of an
incompetent defendant based on dangerousness, and that in order to do so, the
State needed to commence WIS. STAT. ch. 51 proceedings.

¶10 At the May 4, 2023 hearing, the circuit court explained that it had
used an older version of the CR-206 standard form order when it issued the
involuntary medication order.6 Based upon a review of the September 2022
version of the standard order and referencing WIS. STAT. § 971.14(2)(f), the circuit
court concluded that dangerousness was an alternative standard separate from the

5
In Sell v. United States, 539 U.S. 166, 180-81 (2003), the Supreme Court declared that,
before forcibly medicating an accused person to competency to stand trial, the State must show
that: (1) the government has an important interest in proceeding to trial; (2) involuntary
medication will significantly further the governmental interest; (3) involuntary medication is
necessary to further the governmental interest; and (4) involuntary medication is medically
appropriate.
6
The CR-206 standard form order is intended for use in commitments under WIS. STAT.
§ 971.14(5) and involuntary medication orders of those committed under that statute.

5
No. 2023AP722-CR

Sell factors that could be used to order involuntary medication.7 The circuit court
believed that the State should be given an opportunity to pursue this alternative
dangerousness standard and allowed Mendota psychiatrist Dr. Candace Cohen to
testify.

¶11 Dr. Cohen testified that Naomi’s records indicated that “since April
17th,” Naomi threatened and carried out numerous acts that substantially risked
serious physical harm to others. She explained that these behaviors are consistent
with Naomi’s mental illness. Dr. Cohen confirmed that there had been
“discussions at a higher level” of initiating a WIS. STAT. ch. 51 commitment, but
she did not know why it had not been pursued. Dr. Cohen opined that an
involuntary medication order would be in Naomi’s best interest because Naomi’s
“thoughts and behaviors will become clearer and hopefully [Naomi] would be
willing to take the medications which would definitely treat her medical condition
and, therefore, she could stabilize and do better medically.”

¶12 The State argued that Sell discussed dangerousness as an alternative
basis to involuntarily medicate an incompetent defendant. According to the State,
if the basis for involuntary medication is the defendant’s dangerousness, the Sell

7
The CR-206 form used for the April 27, 2023 involuntary medication order was the
November 2019 version of the form that appears to have combined the Sell factors and a finding
of dangerousness into a single check-box. That is, if a circuit court was granting the involuntary
medication order using the November 2019 version of the CR-206 form, it was necessarily
finding the Sell factors satisfied and that the defendant was dangerous. However, the
September 2022 version of the CR-206 form used for the May 4, 2023 involuntary medication
order gives two routes of ordering involuntary medication: (1) by finding the defendant is
dangerous, or (2) by finding the Sell factors satisfied.

Given the way the September 2022 version of the CR-206 form is structured, the circuit
court’s conclusion that dangerousness was an alternative standard separate from the Sell factors
that could be used to order involuntary medication in this case is entirely understandable and a
predictable consequence of structuring the form in this way.

6
No. 2023AP722-CR

factors do not apply, and the court should instead proceed under Washington v.
Harper, 494 U.S. 210 (1990). Naomi argued that Sell’s discussion of whether
involuntary medication can be justified on alternative grounds such as
dangerousness did not create or recognize a separate standard, but instead, it
referred to the alternative statutory authority existing in each state, such as chapter
51 in Wisconsin.

¶13 The circuit court granted the request for involuntary medication and
issued an oral decision. The circuit court believed that in Harper and Sell, the
Supreme Court authorized the courts to involuntarily medicate incompetent
defendants based on a finding of dangerousness. Referencing Sell’s observation
that there are “often strong reasons for a court to determine whether forced
administration of drugs can be justified on these alternative grounds before turning
to the trial competence question,” the circuit court concluded that “the Sell Court
clearly carves out a different treatment where it is believed that a person in
custody is dangerous to him or herself or others.”

¶14 The circuit court stated that “the analysis set forth in Washington v.
Harper actually is the analysis that applies here because ... dangerousness ... is the
main issue[.]” The circuit court then analyzed the facts and granted the “request to
order involuntary administration of medication on grounds of dangerousness under
section three of the standard form, which again is CR-206.” The circuit court
made clear that the involuntary medication order was “not under the Sell factors”
because “the Sell factors do not apply here.”

¶15 On May 5, 2023, the circuit court recalled the case to supplement its
oral decision. The circuit court agreed that WIS. STAT. ch. 51 was a potential
avenue that the State could take to obtain an involuntary medication order based

7
No. 2023AP722-CR

on Naomi’s dangerousness, but it concluded that it had independent authority to
order involuntary medication based on dangerousness under Harper and Sell, and
the applicable Wisconsin statutes; a written order followed.

¶16 Naomi appeals the involuntary medication order.8

DISCUSSION

¶17 In resolving this appeal, we assume without deciding that Naomi
was both mentally ill and a danger to herself or others. We also observe that the
circuit court explicitly stated that the involuntary medication order was not being
issued under the Sell factors, even though it had previously made findings under
the Sell factors, so we do not discuss whether the State satisfied the Sell factors.
The sole question is 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. Answering this question
requires us to interpret statutes and determine whether Naomi’s due process rights
8
The State highlights that this case is moot because Naomi is no longer subject to the
involuntary medication order, but it concedes that this case meets at least one of the exceptions to
the mootness doctrine. Generally speaking, courts “will not consider a question the answer to
which cannot have any practical effect upon an existing controversy.” State v. Leitner, 2002 WI
77, ¶13, 253 Wis. 2d 449, 646 N.W.2d 341. Nonetheless, we recognize exceptions to this general
rule where a case presents an issue that:

(1) is of great public importance; (2) occurs so frequently that a
definitive decision is necessary to guide circuit courts; (3) is
likely to arise again and a decision of the court would alleviate
uncertainty; or (4) will likely be repeated, but evades appellate
review because the appellate review process cannot be
completed or even undertaken in time to have a practical effect
on the parties.

Outagamie Cnty. v. Melanie L., 2013 WI 67, ¶80, 349 Wis. 2d 148, 833 N.W.2d 607 (citation
omitted); see also Leitner, 253 Wis. 2d 449, ¶14. We agree with the State that one or all of these
exceptions apply to the issues presented in this case.

8
No. 2023AP722-CR

were violated, both of which present issues of law that we review de novo.
State v. McGuire, 2010 WI 91, ¶26, 328 Wis. 2d 289, 786 N.W.2d 227; State v.
Anthony D.B., 2000 WI 94, ¶8, 237 Wis. 2d 1, 614 N.W.2d 435.

¶18 The State argues that the circuit court had statutory authority to base
its order on dangerousness because WIS. STAT. § 51.61(1)(g)1. and 3. apply to
individuals committed under WIS. STAT. § 971.14 without the need for additional
commitment under WIS. STAT. ch. 51. The State says that the Supreme Court
decisions relied upon by the circuit court reaffirm that due process is not violated
for involuntarily medicating defendants committed under § 971.14 based on
dangerousness, so long as the order is medically appropriate, based on a mentally
ill person’s dangerousness in a confined setting, and supported by adequate
process such as that afforded by the involuntary medication procedures in
§ 51.61(1)(g)1. and 3.9

¶19 Naomi argues that Harper and Sell did not create or recognize a
separate standard on which to base an involuntary medication order, but rather,
were referring to alternative statutory bases for involuntary medication under
states’ laws, such as WIS. STAT. ch. 51. Naomi argues that § 51.61(1)(g)1. and 3.
do not apply to defendants committed under WIS. STAT. § 971.14 because
§ 971.14 has its own involuntary medication provision which contemplates
involuntary medication only for the purpose of rendering a defendant competent to

9
It is unclear whether the State agrees with the circuit court that Harper and Sell
recognized an independent judicial basis for ordering involuntary medication based on
dangerousness that would not require any grounding in statutory authority (i.e., statutory
authority authorizing dangerousness as a basis for involuntary medication). For both
completeness and because this theory was the basis of the circuit court’s reasoning, we address
the argument.

9
No. 2023AP722-CR

stand trial, and it does not authorize involuntary medication based on a
defendant’s dangerousness.

¶20 We agree with Naomi that the Supreme Court cases relied upon by
the circuit court do not create an independent judicial authority to involuntarily
medicate defendants committed under WIS. STAT. § 971.14 based on
dangerousness, and WIS. STAT. § 51.61(1)(g)1. and 3. do not apply to incompetent
defendants committed under § 971.14. 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. Any request for
involuntary medication due to dangerousness would then be made in the parallel
proceedings and not under § 971.14. The request would not be subject to the Sell
factors because the involuntary medication is being requested for a purpose other
than rendering the defendant competent to stand trial.

¶21 Here, no parallel proceedings were commenced against Naomi. The
only statute under which she was committed was WIS. STAT. § 971.14, and the
applicable involuntary medication procedure in § 971.14(3)(dm) and (4)(b) does
not authorize a circuit court to order involuntary medication based on Naomi’s
dangerousness.

I. The Supreme Court did not create an independent judicial basis for
involuntarily medicating defendants committed under WIS. STAT.
§ 971.14 based on the defendant’s dangerousness.

¶22 In support of its involuntary medication order, the circuit court read
Harper and Sell as establishing an independent judicial basis for involuntarily
medicating Naomi based on its finding that she was mentally ill and dangerous.
The State also appears to argue that the circuit court’s involuntary medication

10
No. 2023AP722-CR

order can be upheld based on these cases and the due process protections that
Naomi actually received (e.g., a contested hearing with the assistance of counsel).
We disagree that these cases stand for the proposition that a court may order
involuntary medication of an incompetent defendant committed under WIS. STAT.
§ 971.14 based on dangerousness without grounding that order in some other
Wisconsin statutory authority that specifically authorizes dangerousness as a basis
for involuntary medication.

¶23 Under the Fifth and Fourteenth Amendments, Naomi has “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 (quoting Harper, 494 U.S. at 221). If the government seeks an
involuntary medication order during criminal competency proceedings, the goal of
that order is limited to “rendering the defendant competent to stand trial.” Sell,
539 U.S. at 181 (emphasis in original).

¶24 In Sell, the Supreme Court declared that, before forcibly medicating
an accused person to competency to stand trial, the State must show that: (1) the
government has an important interest in proceeding to trial; (2) involuntary
medication will significantly further the governmental interest; (3) involuntary
medication is necessary to further the governmental interest; and (4) involuntary
medication is medically appropriate. Sell, 539 U.S. at 180-81. In setting forth this
standard, the Court observed:

A court need not consider whether to allow forced
medication for [competency to stand trial], if forced
medication is warranted for a different purpose, such as the
purposes set out in Harper related to the individual’s
dangerousness, or purposes related to the individual’s own
interests where refusal to take drugs puts his [or her] health
gravely at risk. There are often strong reasons for a court
to determine whether forced administration of drugs can be

11
No. 2023AP722-CR

justified on these alternative grounds before turning to the
trial competence question.

Sell, 539 U.S. at 181-82 (emphasis in original; citation omitted). Harper held that

given the requirements of the prison environment, the Due
Process Clause permits the State to treat a prison inmate
who has a serious mental illness with antipsychotic drugs
against his [or her] will, if the inmate is dangerous to
himself [or herself] or others and the treatment is in the
inmate’s medical interest.

Harper, 494 U.S. at 227. The Court in Harper upheld a Washington statute as
constitutional given the law’s procedural and substantive protections.10 Id. at 225-
26.

¶25 We conclude 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. Harper discusses what process is due constitutionally before a defendant
may be involuntarily medicated based on his or her dangerousness. In Harper, it
was the Washington statute under review, not independent judicial authority,
which allowed the court to order involuntary medication. Id., 494 U.S. at 215-16.

¶26 Likewise, in Wisconsin, statutory authority is necessary to issue an
order for involuntary medication. Anthony D.B., 237 Wis. 2d 1, ¶24 (explaining
that our decision in K.N.K. v. Buhler, 139 Wis. 2d 190, 407 N.W.2d 281 (Ct. App.

10
In Riggins v. Nevada, 504 U.S. 127, 135 (1992), the Court extended Harper to the
pretrial confinement setting: “[u]nder Harper, forcing antipsychotic drugs on a convicted
prisoner is impermissible absent a finding of overriding justification and a determination of
medical appropriateness. The Fourteenth Amendment affords at least as much protection to
persons the State detains for trial.” See State v. Wood, 2010 WI 17, ¶22, 323 Wis. 2d 321, 780
N.W.2d 63 (discussing Riggins).

12
No. 2023AP722-CR

1987) “illustrates the necessity for statutory authority to issue an order for
involuntary medication”). Nothing 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.

¶27 Sell simply acknowledges the existence of alternative grounds to
order involuntary medication and instructs courts to explore those grounds before
turning to the trial competence question. If the Sell Court intended to authorize or
recognize an independent judicial basis to order involuntary medication based on
dangerousness of an incompetent defendant subject to pretrial commitment,
despite the fact that state statutes already exist governing the process, it would
have said so explicitly. Instead, it said the opposite, explaining that “courts, in
civil proceedings, may authorize involuntary medication where the patient’s
failure to accept treatment threatens injury to the patient or others.” Id., 539 U.S.
at 182 (emphasis added).

¶28 Accordingly, Harper and Sell did not supply the circuit court with
authorization to issue the involuntary medication order against Naomi based on
her dangerousness and without applying the Sell factors. Such authority must
derive from our statutes. Anthony D.B., 237 Wis. 2d 1, ¶24.

II. WISCONSIN STAT. § 51.61(1)(g)1. and 3. do not apply to incompetent
defendants committed under WIS. STAT. § 971.14.

¶29 Having concluded that Harper and Sell did not authorize the
involuntary medication order in this case, we now turn to whether the order was
supported by statutory authority. Specifically, we consider whether WIS. STAT.
§ 51.61(1)(g)1. and 3. apply to Naomi. If the involuntary medication provisions

13
No. 2023AP722-CR

contained in those subsections apply here, Naomi can be involuntarily medicated
based on her dangerousness without consideration of the Sell factors.

¶30 The State argues that WIS. STAT. § 51.61(1)(g)1. and 3. apply to
Naomi because she is a “patient” under § 51.61(1),11 and subsections 1. and 3.
allow a circuit court to order involuntary medication based on the patient’s
dangerousness. Section 51.61(1)(g)1. grants patients “the right to refuse all
medication and treatment except ... in a situation in which the medication or
treatment is necessary to prevent serious physical harm to the patient or to others.”
Section 51.61(1)(g)3. grants patients the right to “exercise informed consent with
regard to all medication and treatment ... unless a situation exists in which the
medication or treatment is necessary to prevent serious physical harm to the
individual or others.” The State says that these subsections apply to Naomi
without the need for additional commitment under ch. 51, relying primarily on
Anthony D.B.

¶31 We disagree with the State. Indeed, Anthony D.B. compels the
opposite conclusion. In Anthony D.B., our supreme court concluded that the right
to informed consent and involuntary medication provision in WIS. STAT.
§ 51.61(1)(g)3. applied to individuals committed under WIS. STAT. ch. 980.
Anthony D.B., 237 Wis. 2d 1, ¶¶15, 26. It observed that, in a prior case, it
determined that individuals committed under ch. 980 were entitled to all of the
patients’ rights set forth in ch. 51. Anthony D.B., 237 Wis. 2d 1, ¶13 (citing State

11
As relevant here, WIS. STAT. § 51.61(1) defines “patient” as “any individual who is
receiving services for mental illness ... including any individual ... who is detained, committed or
placed under this chapter or [WIS. STAT.] ch. ... 971[.]”

14
No. 2023AP722-CR

v. Post, 197 Wis. 2d 279, 309, 541 N.W.2d 115 (1995)). Chapter 980 did not set
forth specific procedures for involuntary medication, but § 51.61(1)(g) did:

Following a final commitment order, ... [each patient shall]
have the right to exercise informed consent with regard to
all medication and treatment unless the committing court or
the court in the county in which the individual is located ...
makes a determination, following a hearing, that the
individual is not competent to refuse medication or
treatment or unless a situation exists in which the
medication or treatment is necessary to prevent serious
physical harm to the individual or others.

Anthony D.B., 237 Wis. 2d 1, ¶14 (quoting § 51.61(1)(g)3. (1995-96)) (alterations
in original). The court concluded that because the legislature provided individuals
committed under ch. 980 all statutory rights under § 51.61, Anthony D.B. had
“‘the right to exercise informed consent with regard to all medication and
treatment … unless a situation exists in which the medication or treatment is
necessary to prevent serious physical harm’” to himself or others. Anthony D.B.,
237 Wis. 2d 1, ¶¶14-15 (citation omitted).

¶32 In support of its conclusion, the supreme court discussed the
legislative history of WIS. STAT. § 51.61(1)(g):

In 1987 this court held that WIS. STAT.
§ 51.61(1)(g) (1985-86) applied to individuals involuntarily
committed under WIS. STAT. ch. 971. State ex rel. Jones v.
Gerhardstein, 141 Wis. 2d 710, 745, 416 N.W.2d 883
(1987). Subsequently, the legislature repealed and re-
created § 51.61(1)(g) in 1987 Wis. Act 366, § 18. The
following session, separate involuntary medication
provisions were enacted for those committed under ch. 971
and WIS. STAT. ch. 975.

Anthony D.B., 237 Wis. 2d 1, ¶18.

¶33 Unlike WIS. STAT. ch. 971 and 975, the legislature did not create in
WIS. STAT. ch. 980 a separate involuntary medication provision. However,

15
No. 2023AP722-CR

because individuals committed under ch. 980 were indisputably “patients” for
purposes of WIS. STAT. § 51.61,12 the supreme court concluded that individuals
committed under ch. 980 can be involuntarily medicated “to prevent serious
physical harm” to themselves or others under § 51.61(1)(g)3. It held:

Rather than a condemnation of using the ch. 51 procedures
where involuntary medication orders are sought for those
committed under ch. 980, we conclude that the legislative
history supports the conclusion that the procedures in
[§] 51.61 apply unless and until the legislature provides
alternative provisions. To date the legislature has not
elected to add specific involuntary medication provisions to
ch. 980. Therefore the provisions of § 51.61(1)(g), and the
relevant provisions in WIS. STAT. § 51.20, control
involuntary medication orders for persons committed under
[ch. 980].

Anthony D.B., 237 Wis. 2d 1, ¶20. The court rejected Anthony D.B.’s argument
that the State was required to pursue a ch. 51 commitment in addition to the
ch. 980 commitment in order to obtain an involuntary medication order. Anthony
D.B., 237 Wis. 2d 1, ¶10.

¶34 Anthony D.B. makes clear that the involuntary medication
provisions in WIS. STAT. § 51.61(1)(g)1. and 3. apply to patients only if the
legislature has not provided an “alternative provision[].” Anthony D.B., 237
Wis. 2d 1, ¶20. Unlike WIS. STAT. ch. 980, in WIS. STAT. § 971.14(3)(dm) and
(4)(b), the legislature created a separate, alternative involuntary medication
procedure and these statutes do not authorize involuntary medication based on an
individual’s dangerousness.

12
Like individuals committed under WIS. STAT. ch. 971, individuals committed under
WIS. STAT. ch. 980 are also defined by WIS. STAT. § 51.61(1) as “patients.”

16
No. 2023AP722-CR

¶35 Moreover, at the time State ex rel. Jones v. Gerhardstein was
decided (holding that the involuntary medication provisions of WIS. STAT.
§ 51.61(1)(g) applied to incompetent defendants committed under WIS. STAT.
ch. 971), ch. 971 did not require that a court find that the defendant was not
competent to refuse medication before it could order involuntary medication.
Jones, 141 Wis. 2d 710, 745, 416 N.W.2d 883 (1987) recognized as superseded
by statute in Anthony D.B., 237 Wis. 2d 1, ¶20; compare WIS. STAT. § 971.14 and
971.17 with § 971.14 and 971.17 (1985-86). Defendants committed under ch. 971
were being forcibly medicated without having first “been adjudged incompetent to
refuse drugs.” Jones, 141 Wis. 2d at 721. As it does today, § 51.61(1) (1985-86)
defined individuals committed under ch. 971 as “patients.” Compare § 51.61(1)
with § 51.61(1) (1985-86). The Jones court held that in order to correct the
“constitutional infirmity” manifest in involuntarily medicating individuals
committed under ch. 971 without a finding that they are incompetent to refuse
medication, it would apply “the procedures and standards set forth in the first five
sentences” of § 51.61(1)(g). Jones, 141 Wis. 2d at 745. The court concluded that
under § 51.61(1)(g), defendants committed under ch. 971 could not be forcibly
medicated unless a court found the defendant incompetent to refuse medication or
“where such administration ‘[was] necessary to prevent serious physical harm to
the patient or to others[.]’” Jones, 141 Wis. 2d at 745 (citation omitted).

¶36 Seemingly in direct response to Jones, the legislature repealed and
re-created WIS. STAT. § 51.61(1)(g), and in the following session, separate
involuntary medication provisions were enacted for individuals committed under
WIS. STAT. ch. 971. Dangerousness was not included as a basis for ordering
involuntary medication. Section 971.14(4)(b) (1989-90) was amended to state:

17
No. 2023AP722-CR

If the defendant is found incompetent and if the [S]tate
proves by evidence that is clear and convincing that the
defendant is not competent to refuse medication or
treatment, under the standard specified in sub. (3)(dm), the
court shall make a determination without a jury and issue
an order that the defendant is not competent to refuse
medication or treatment[.]

Section 971.14(3)(dm) (1989-90) was created, and it sets forth the standard chosen
by the legislature that must be met before an incompetent defendant committed
under § 971.14 can be involuntarily medicated:

The defendant is not competent to refuse medication or
treatment if, because of mental illness … the defendant is
incapable of expressing an understanding of the advantages
and disadvantages of accepting medication or treatment,
and the alternatives to accepting the particular medication
or treatment offered, after the advantages, disadvantages
and alternatives have been explained to the defendant.

In the 1995-96 statutes, the legislature added a new standard allowing a finding of
incompetence to refuse medication if “[t]he defendant is substantially incapable of
applying an understanding of the advantages, disadvantages and alternatives to his
or her mental illness ... in order to make an informed choice as to whether to
accept or refuse medication or treatment.” Sec. 971.14(3)(dm)2. (1995-96). The
language of § 971.14(3)(dm) and (4)(b) has remained substantively unchanged
since then, even after our supreme court ruled that these subsections were
unconstitutional to the extent they required courts to order involuntary medication
without addressing the Sell factors. Fitzgerald, 387 Wis. 2d 384, ¶2.13

13
In State v. Fitzgerald, 2019 WI 69, ¶2, 387 Wis. 2d 384, 929 N.W.2d 165, the
supreme court held that WIS. STAT. § 971.14(3)(dm) and (4)(b) were unconstitutional to the
extent they required courts to order involuntary medication without addressing the factors set
forth in Sell. The legislature has not repealed or amended § 971.14 in response to Fitzgerald, so
circuit courts must continue to make findings required by § 971.14(4)(b) in addition to analyzing
the Sell factors before it can order the involuntary administration of medication to an incompetent
defendant committed under § 971.14.

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No. 2023AP722-CR

¶37 Given that, under Jones, defendants committed under WIS. STAT.
§ 971.14 were allowed to be forcibly medicated upon a finding that it was
“necessary to prevent serious physical harm to” themselves or others, Jones, 141
Wis. 2d at 745, it is compelling that the legislature chose not to include this
language when creating the involuntary medication procedure in § 971.14(3)(dm)
and (4)(b), or when it added § 971.14(3)(dm)2. as a basis for finding the defendant
incompetent to refuse medication. “Judicial deference to the policy choices
enacted into law by the legislature requires that statutory interpretation focus
primarily on the language of the statute[,]” and “[w]e assume that the legislature’s
intent is expressed in the statutory language.” State ex rel. Kalal v. Circuit Ct. for
Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.

¶38 An incompetent defendant’s dangerousness was not included as a
basis for involuntary medication when the legislature created the involuntary
medication procedures in WIS. STAT. § 971.14(3)(dm) and (4)(b), even though
under Jones, providing no specific procedure at all would have made the
involuntary medication procedures under WIS. STAT. § 51.61(1)(g)1. and 3.
applicable. See State v. Grady, 2006 WI App 188, ¶9, 296 Wis. 2d 295, 722
N.W.2d 760 (“We presume that the legislature acts with full knowledge of existing
case law when it enacts a statute.”). We must honor this policy choice, especially
where the legislative history confirms what is plain from the statutory language
itself. Kalal, 271 Wis. 2d 633, ¶51 (recognizing that “legislative history is
sometimes consulted to confirm or verify a plain-meaning interpretation”).

¶39 Our conclusion is also in accord with State v. Wood, 2010 WI 17,
323 Wis. 2d 321, 780 N.W.2d 63, a case interpreting whether a dangerousness
finding was necessary before involuntarily medicating an individual committed
under WIS. STAT. § 971.17. After a criminal defendant is found not guilty by

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No. 2023AP722-CR

reason of mental disease or defect, they are committed for treatment and subject to
the involuntary medication procedure in § 971.17(3)(c). Wood, 323 Wis. 2d 321,
¶29.

¶40 In Wood, the supreme court reasoned: “we do not believe that a
finding of present dangerousness is required when considering whether to issue an
order to forcibly medicate such an individual[,]” observing that WIS. STAT.
§ 971.17(3)(c) required only “that the person cannot express an understanding of
the advantages, disadvantages, and alternatives to medication or treatment or that
he or she has such an understanding but cannot apply it to his or her mental illness
in order to make an informed choice.” Wood, 323 Wis. 2d 321, ¶33. In addition
to the plain language of the statute not requiring a finding of present
dangerousness, the court observed that a finding of dangerousness is implied by
the fact that the individual was ordered to institutional care as opposed to
conditional release, because institutional care is imposed only when the court
“‘finds by clear and convincing evidence that conditional release of the person
would pose a significant risk of bodily harm to himself or herself or to others or of
serious property damage.’” Id., ¶35 (quoting § 971.17(3)(a)). No similar
language exists in WIS. STAT. § 971.14. We conclude from our analysis that when
the legislature wishes to authorize a circuit court to order involuntary medication
based on an individual’s dangerousness, it explicitly grants that authority, and it
did not do so in § 971.14(3)(dm) and (4)(b).

III. WISCONSIN STAT. § 971.14(2)(f) did not authorize the circuit court’s
involuntary medication order.

¶41 We conclude that the involuntary medication provisions in WIS.
STAT. § 51.61(1)(g)1. & 3. do not apply to Naomi, and the State argues no other
statutes in support of the circuit court’s involuntary medication order based on

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No. 2023AP722-CR

Naomi’s dangerousness. However, we observe that the circuit court relied, in
part, on WIS. STAT. § 971.14(2)(f) for authority to order involuntary medication
based on Naomi’s dangerousness. Section 971.14(2)(f) relates to the involuntary
medication of defendants for whom competency has been raised and an
examination is ordered, but a competency determination has not been made and
commitment has not been ordered. It reads: “A defendant ordered to undergo
examination under this section may receive voluntary treatment appropriate to his
or her medical needs. The defendant 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.” Sec. 971.14(2)(f). Naomi argues that
§ 971.14(2)(f) applies only during the examination stage of competency
proceedings.

¶42 We agree with Naomi. In our view, the plain language of WIS.
STAT. § 971.14(2)(f) makes clear that it does not apply after a competency
decision has been made and commitment has been ordered. Kalal, 271 Wis. 2d
633, ¶45 (“‘If the meaning of the statute is plain, we ordinarily stop the inquiry.’”
(Citation omitted.)). First, it specifies that it applies to “[a] defendant ordered to
undergo examination under this section[,]” and not to individuals who have
already been examined, found incompetent, and committed like Naomi. After the
examination is conducted, the defendant is no longer presently “ordered to
undergo examination.” Second, viewed in the context of § 971.14(2) as a whole,
subsection (2)(f) plainly governs the administration of medication or treatment
during the period of time after an examination has been ordered but before a
competency decision has been made and commitment has been ordered. The
language of § 971.14(2) as a whole is geared toward defining the process under
which the competency examination will take place, and subsection (2)(f) is no

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No. 2023AP722-CR

different. Kalal, 271 Wis. 2d 633, ¶46 (explaining that “statutory language is
interpreted in the context in which it is used” and that “the structure of the statute
in which the operative language appears” is important to its meaning).

¶43 It is debatable whether WIS. STAT. § 971.14(2)(f) could be
interpreted to apply to Naomi or a similarly situated defendant because Naomi
was, after all, “ordered to undergo examination” under § 971.14(2) before she was
committed.14 To the extent § 971.14(2)(f) is ambiguous in this respect, we are
persuaded that the legislative history of the involuntary medication provisions
created in § 971.14(3)(dm) and (4)(b), as detailed above, conclusively
demonstrates that dangerousness was not intended to be a basis for involuntary
medication under § 971.14(3)(dm) and (4)(b). Kalal, 271 Wis. 2d 633, ¶¶47-48,
51 (explaining that “a statute is ambiguous if it is capable of being understood by
reasonably well-informed persons in two or more senses” and that “[i]f a statute is
ambiguous, the reviewing court turns to the scope, history, context, and purpose of
the statute” (citation omitted)).

¶44 The legislature created the involuntary medication procedures in
WIS. STAT. § 971.14(3)(dm) and (4)(b) swiftly after the supreme court applied the
involuntary medication procedures in WIS. STAT. § 51.61(1)(g) to incompetent
defendants committed under WIS. STAT. ch. 971, a standard that would have
allowed involuntary medication based on the defendant’s dangerousness. Given
this history, we must view the absence of language authorizing courts to

14
We question whether this interpretation is reasonable given that WIS. STAT.
§ 971.14(2)(f)’s authority to involuntarily medicate Naomi, under this interpretation, would span
her entire life, because she will forever have been a “defendant ordered to undergo examination”
under § 971.14(2).

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No. 2023AP722-CR

involuntarily medicate these individuals based on dangerousness as a deliberate
policy choice.

CONCLUSION

¶45 We conclude that Harper and Sell do not create independent judicial
authority to involuntarily medicate defendants committed under WIS. STAT.
§ 971.14 based on dangerousness, and WIS. STAT. § 51.61(1)(g)1. and 3. do not
apply to § 971.14.15 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. The request for
involuntary medication would then be made in these parallel proceedings and
would not be subject to the Sell factors because the involuntary medication is
being requested on grounds other than rendering the defendant competent to stand
trial.

¶46 Here, 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.
Therefore, we reverse and direct the circuit court to vacate the involuntary
medication order.

15
Although we conclude that the involuntary medication provisions of WIS. STAT.
§ 51.61(1)(g)1. and 3. do not apply to defendants committed under WIS. STAT. § 971.14, we
observe that a defendant’s right to refuse medication and to exercise informed consent are
provided for and adequately protected by § 971.14(3)(dm) and (4)(b) in combination with Sell.

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No. 2023AP722-CR

By the Court.—Order reversed.

Recommended for publication in the official reports.

24