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June 13, 2023 – The Wisconsin Supreme Court has reversed a Wisconsin Court of Appeals opinion affirming an involuntary medication order issued based on a psychologist’s testimony.

In State v. Anderson, 2023 WI 44 (June 2, 2023), the supreme court held in a per curiam decision that the state had conceded that it hadn’t met the burden for involuntary medication orders established by the U.S. Supreme Court. Justice Patience Roggensack dissented.

Competency Evaluation

In March 2020, Wilson P. Anderson hit a woman on the head and injured her in Milwaukee County. The police arrested Anderson, and the next day the Milwaukee County District Attorney filed charges against him.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

The Milwaukee County Circuit Court ordered a competency exam. Dr. Debora Collins, a psychologist, evaluated Anderson through the door of his cell, because Anderson was agitated and behaving erratically.

During the evaluation, Anderson kept shouting out comments and his responses were often incoherent. Collins wasn’t sure that Anderson understood the purpose of the examination.

Collins submitted a written report in which she concluded that Anderson wasn’t competent to understand the criminal charges filed against him, or to aid in his defense.

Competency Hearing  

Anderson requested a competency hearing. The circuit court ordered Collins to give a written opinion regarding whether Anderson should be involuntarily medicated.

In an addendum to her report, Collins said that Anderson was not competent to make treatment decisions, including decisions about taking psychotropic medication. She did not, however, offer any opinion regarding a potential course of treatment or medicine dosage or side effects.

At the competency hearing, after Anderson objected to Collins’ “medication order testimony,” the circuit court allowed Collins to testify on “both facets.” After the hearing, the circuit court issued an involuntary medication order and a commitment order.

The circuit court stayed the order, and Anderson appealed.

Court of Appeals

The Wisconsin Court of Appeals affirmed the circuit court’s involuntary commitment order in an unpublished decision.

Anderson filed a petition with the supreme court. In it, he argued that the state’s failure to use evidence from a licensed physician to meet three of the four factors required for an involuntary medication order established by the U.S. Supreme Court in Sell v. United States, 539 U.S. 166 (2003), violated his rights.

The supreme court granted Anderson’s petition, ordered full briefing, and heard oral arguments on April 17, 2023.

But on June 2, 2023, the supreme court issued a per curiam opinion in which it summarily reversed the court of appeals’ decision, because the state conceded that it hadn’t met its burden under Sell.

Roggensack: Court ‘Shirks Its Duty’

In her dissent, Justice Roggensack argued that the supreme court had failed to carry out its law-declaring function and side-stepped the important legal questions raised by the parties.

Roggensack pointed out that the supreme court had never addressed whether testimony from a psychologist was enough to meet the standard set by the U.S. Supreme Court in Sell.

In her opinion, Justice Roggensack wrote, a psychologist’s testimony was not sufficient to meet the second and fourth factors under Sell. But more importantly, she wrote that by failing to take up that question, “this court shirks its duty to the parties and the public to declare what the law requires.”

“We also disserve those closest to the mentally ill, those who seek help before an ill individual becomes more dangerous,” Justice Roggensack wrote.

“Today is another example of this court’s increasing indifference to the obligations imposed upon the Wisconsin Supreme Court as an institution,” Roggensack wrote.

“I dissent because I would fulfill our obligation in a deeply complicated legal terrain and of incredible personal significance to those seeking guidance from this court.”

Concession Came Before Full Briefing

Justice Roggensack also pointed out that the state had conceded that it hadn’t met its burden under Sell in letter briefing before the supreme court ordered full briefing.

“There was nothing new this court could have learned about the State’s position from full briefing if the court intended to decide the case on the State’s concession, as it does today,” Roggensack wrote.

Under Wisconsin law, Justice Roggensack wrote, only the supreme court has the power and obligation to define the law – an obligation she argued the court has become increasingly unwilling to fulfill.

“Today, this court elects to do nothing despite the awesome responsibility – the obligation – to oversee and implement law declaration in Wisconsin,” Roggensack wrote.

“I regret that the parties’ efforts to inform us of the legal issues presented fell on inattentive ears and that they have received no thoughtful response from this court.”