1. Whether Sell v. United States, 539 U.S. 166 (2003) requires the State to submit a treatment plan in support of its motion for involuntary medication to restore a defendant’s competency to proceed in a criminal case.
2. Whether Sell requires the State to offer the opinion of a medical doctor (rather than a psychologist) to satisfy the second, third, and fourth Sell factors.
In the old days, before SCOW declared parts of §971.14 unconstitutional for violating Sell, circuit courts would find a defendant incompetent to proceed and incompetent to make medication or treatment decisions in the same hearing, based on a psychologist’s opinion. The court would then order involuntary medication.
Under Sell and a recently published court of appeals decision, State v. Green, 2021 WI App 18, 396 Wis. 2d 658, 957 N.W.2d 583, that is no longer possible. A psychologist may still opine that a defendant is incompetent to proceed and incompetent to make medication or treatment decisions in the same hearing. But a court may not order involuntary medication to restore the defendant’s competency unless the State satisfies the 4 Sell factors. And according to Green (and substantial federal case law), the State must submit an individualized treatment plan specifying the medications that the defendant’s treating physician wants to administer, their maximum dosages, and the duration of treatment. Then the circuit court must approve the treatment plan. Green, ¶38.
The court of appeals is a unitary court. A published opinion by one district is binding on all of the other districts. In re Court of Appeals, 82 Wis. 2d 369, 371, 263 N.W.2d 149 (1978). So imagine Anderson’s surprise when less than a month after District 4 issued Green, which was recommended for publication, District 1 issued an unpublished opinion in his case holding that Sell does not require a treatment plan, proposed medications, dosages, duration of treatment or even the opinion of a physician. You may be thinking: “‘recommended for publication’ is not the same as ‘ordered published.’” However, Anderson moved for reconsideration based on Green, which was ordered published on March 31, 2021. Well after that, on May 4, 2021, District 1 dug its heels in and denied reconsideration.
Bottom line: SCOW will be deciding whether District 4 or District 1 is correct on these matters.