State v. Fitzgerald, 2018AP1296-CR & 2018AP1214-W

CourtUnited States State Supreme Court of Wisconsin
Citation2019 WI 69,387 Wis.2d 384,929 N.W.2d 165
Docket NumberNo. 2018AP1296-CR & 2018AP1214-W,2018AP1296-CR & 2018AP1214-W
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Raytrell K. FITZGERALD, Defendant-Appellant. State of Wisconsin ex rel. Raytrell K. Fitzgerald, Petitioner-Petitioner, v. Circuit Court for Milwaukee County and the Honorable Dennis R. Cimpl, presiding, Respondents.
Decision Date13 June 2019

For the defendant-appellant in 18AP1296-CR, and petitioner-petitioner in 18AP1214-W, there were briefs filed by Colleen D. Ball, assistant state public defender. There were oral arguments by Colleen D. Ball.

For the plaintiff-respondent, there was a brief filed by Maura FJ Whelan, assistant attorney general, with whom on the brief is Brad D. Schimel, attorney general. There was an oral argument by Maura FJ Whelan.

For the respondents, there was a brief filed by Abigail C.S. Potts, assistant attorney general, with whom on the brief if Brad D. Schimel, attorney general. There was an oral argument by Abigail C.S. Potts.

An amicus curiae brief was filed in 18AP1296-CR on behalf of National Association for Criminal Defense Lawyers, Bazelon Center for Mental Health Law, National Disability Rights Network, and Disability Rights Wisconsin, by Jeffrey O. Davis, James E. Goldschmidt, Zachary T. Eastburn, and Quarles & Brady LLP, Milwaukee.


¶1 These consolidated cases1 concern the standard under which a circuit court may order involuntary medication to restore a defendant's competency to proceed in a criminal case and the timing of the automatic stay of such orders established in State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141. The circuit court ordered Raytrell K. Fitzgerald to be involuntarily medicated pursuant to Wis. Stat. § 971.14 (2017-18)2 to restore his competency to stand trial on a felony possession-of-a-firearm charge. After the circuit court entered its order, this court released the Scott decision, subjecting involuntary medication orders to an automatic stay pending appeal. Following a hearing on the impact of the Scott decision, the circuit court stayed its involuntary medication order but announced its plan to lift the stay in response to the State's motion. As the case proceeded through the appellate courts, the circuit court never lifted the stay. Fitzgerald petitioned the court of appeals for a supervisory writ, arguing that the automatic stay begins upon entry of the involuntary medication order rather than upon filing a notice of appeal as the court of appeals ultimately held. Because the court is equally divided on the writ matter, we affirm the court of appeals decision denying Fitzgerald's petition for a supervisory writ.

¶2 We do, however, address Fitzgerald's challenge to the constitutionality of Wis. Stat. § 971.14 based on its incompatibility with Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). In Sell, the United States Supreme Court held that in limited circumstances the government may involuntarily medicate a defendant to restore his competency to proceed to trial, and it outlined four factors that must be met before a circuit court may enter an order for involuntary medication. We hold that the standard for ordering involuntary medication set forth in § 971.14(3)(dm) and (4)(b) is unconstitutional to the extent it requires circuit courts to order involuntary medication based on the standard set forth in paragraph (3)(dm), which does not comport with Sell. We conclude circuit courts may order involuntary medication to restore trial competency under § 971.14 only when the order complies with the Sell standard. We vacate the circuit court's order for involuntary medication in this case because it is constitutionally insufficient.


¶3 In October 2016, the State charged Fitzgerald with possession of a firearm contrary to a harassment injunction.3 The circuit court ordered a competency evaluation, which showed Fitzgerald suffered from "Schizoaffective disorder

" and lacked substantial mental capacity to understand the proceedings or to be of meaningful assistance in his own defense. In December 2017, the circuit court signed an Order of Commitment for Treatment requesting an assessment for Fitzgerald's participation in the Outpatient Competency Restoration Program (OCRP). Dr. Brooke Lundbohm, a psychologist, sent the circuit court an OCRP assessment letter in February 2018, concluding that Fitzgerald "is clinically appropriate for the Outpatient Competency Restoration Program at this time and has been admitted to the Program," despite Fitzgerald having a history of refusing to take prescribed medication.

In April 2018, Lundbohm informed the circuit court by letter that Fitzgerald's "status with the Outpatient Competency Restoration Program has changed," and he was "no longer clinically appropriate for participation in" OCRP due to safety concerns. The letter also noted that Fitzgerald displayed a lack of motivation to participate in the program. On that basis, the circuit court "deemed [Fitzgerald] no longer clinically appropriate for OCRP," remanded Fitzgerald to the Department of Health Services' (DHS) custody, and ordered a second competency evaluation under Wis. Stat. § 971.14.

¶4 In May 2018, Dr. Ana Garcia, a psychologist, conducted Fitzgerald's second competency evaluation and sent her report to the circuit court. The report noted Fitzgerald's Schizoaffective Disorder

diagnosis and explained he had been "treated with Seroquel (antipsychotic medication) and Benztropine (medication used to treat the side effects of psychotropic medications)." Garcia reported that when Fitzgerald refused to take his medication while hospitalized, "an injectable version of the medication could not be forced upon him" because no order to medicate involuntarily existed. If treated with medication, Garcia opined Fitzgerald would "likely ... be restored to competency within the statutory period," and further noted that Fitzgerald was "incapable of expressing a rational understanding of the benefits and risks of medication or treatment." Accordingly, Garcia concluded that Fitzgerald was "not competent to refuse medication or treatment," and recommended that treatment continue on an inpatient basis. As to the anticipated effectiveness of the recommended treatment in restoring Fitzgerald's competency, Garcia noted in her report that "[t]reatment with antipsychotic medication is known to be effective in treating symptoms of psychosis

, which is precluding [Fitzgerald's] competence to proceed" in his criminal case.

¶5 On June 18, 2018, the circuit court held a hearing on whether to issue an order for involuntary medication under Wis. Stat. § 971.14. During that hearing, Garcia testified, explaining why she believed the circuit court should issue an order for involuntary medication:

"Fitzgerald has continued to exhibit indications of psychotic symptoms" and was "unable to discuss his charges in a reasonable way."
"[W]e find psychotropic medication to help him better organize his thoughts, reduce the auditory hallucinations, and reduce the delusional beliefs."
• Fitzgerald refused to take his medications and attempted to hide them in his room.

Garcia testified that "as a psychologist, I don't prescribe specific medications" but "I do know that for treating schizophrenia

and schizoaffective disorder, the primary treatment is an antipsychotic medication, and he had been prescribed" the generic version of Seroquel during his admission at Mendota Mental Health Institute.

¶6 Fitzgerald also testified at the hearing. He thought he had been misdiagnosed, explained he had "been feeling really fine" without medication, and stated that he did not wish to submit to forced medication, expressing concerns about the dosage.

¶7 After the close of testimony, the circuit court ordered the administration of involuntary medication to restore Fitzgerald's competency. The circuit court explained the basis for its order:

[T]here is an important government interest at stake here and that is the fact that he's charged with a serious felony. It may be a status offense, but the fact is he is alleged to be carrying a gun while under a prohibition for carrying a gun, and I recall the motion hearing that we had in this matter when the police approached him and searched him, which I found was a valid search. And so, therefore, that is in my opinion an important government interest, the furtherance of this felony.
The fact that he does not take his medication is not facilitating him to be restored to competency. That's what this is all about so he can stand trial on whether or not he is guilty of this very serious offense; therefore, the fact that he's not taking his meds and has to be given them involuntarily does further that interest and I think it's also a necessary reason to further that interest. And we've got testimony from Dr. Garcia, who has reviewed his psychiatrist [sic] that the two meds or the medication that is prescribed for him is appropriate, and it was appropriate back in earlier 2013, when he was not taking and engaged in violence with his mother.[4]

¶8 On June 20, 2018, before Fitzgerald filed his notice of intent to pursue postdisposition relief, this court decided Scott, 382 Wis. 2d 476, 914 N.W.2d 141. In Scott, we exercised our superintending authority to "order that involuntary medication orders [under Wis. Stat. § 971.14 ] are subject to an automatic stay pending appeal." Id., ¶ 43. On June 25, 2018, Fitzgerald filed his "Notice of Intent to Pursue Postdisposition Relief" and two days later filed a letter informing the circuit court that his medication order was automatically stayed under Scott.5

¶9 On June 27, 2018, the circuit court held another hearing. The circuit court granted the stay, but indicated that it would immediately lift the stay on the State's motion. On June 28, 2018, the same day Fitzgerald filed his petition for a...

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