                                                             2019 WI 69

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:              2018AP1296-CR & 2018AP1214-W
COMPLETE TITLE:        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.

                             ON BYPASS FROM THE COURT OF APPEALS &
                          REVIEW OF DECISION OF THE COURT OF APPEALS

OPINION FILED:         June 13, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         March 20, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Dennis R. Cimpl

JUSTICES:
   CONCURRED:          ROGGENSACK, C.J. concurs, joined by ZIEGLER, J.
                       (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:   ABRAHAMSON, J. did not participate.

ATTORNEYS:


       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.




                                  2
                                                                      2019 WI 69
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.    2018AP1296-CR & 2018AP1214-W
(L.C. No.   2016CF4475)

STATE OF WISCONSIN                          :            IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,
                                                                   FILED
      v.
                                                              JUN 13, 2019
Raytrell K. Fitzgerald,
                                                                 Sheila T. Reiff
             Defendant-Appellant.                             Clerk of Supreme Court




State of Wisconsin ex rel. Raytrell K.
Fitzgerald,

             Petitioner-Petitioner,

      v.

Circuit Court for Milwaukee County and the
Honorable Dennis R. Cimpl, presiding,

             Respondents.




      APPEAL from an order of the Circuit Court for Milwaukee
County,     Dennis   R. Cimpl,   Circuit   Court    Judge.        Vacated; and
REVIEW of a decision of the Court of Appeals.             Affirmed.




                                      1
                                              No.     2018AP1296-CR & 2018AP1214-W



     ¶1        REBECCA GRASSL BRADLEY, J.           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

     1 Our decision resolves two cases, State v. Fitzgerald,
2018AP1296-CR and State ex rel. Fitzgerald v. Circuit Court for
Milwaukee Cty., 2018AP1214-W.        We decide the merits of
2018AP1296-CR by vacating the circuit court's order. This part
of our decision addresses the constitutionality of Wis. Stat.
§ 971.14 and although the circuit court's order is moot, we
declare rights relative to it and vacate the order because it is
constitutionally infirm.     In 2018AP1214-W, we are equally
divided regarding the appropriate disposition and therefore
affirm the decision of the court of appeals. We consolidate the
cases because the facts and procedural history of each are
intertwined   and  collectively   provide  necessary  background
information for a full understanding of our decision.
     2 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.


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                                                     No.    2018AP1296-CR & 2018AP1214-W



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 (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.




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                                                     No.     2018AP1296-CR & 2018AP1214-W



                                  I.     BACKGROUND
     ¶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



     3 The   charge    alleged   violations                          of      Wis.      Stat.
§§ 941.29(1m)(g) and 939.50(3)(g) (2015-16).


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                                                    No.     2018AP1296-CR & 2018AP1214-W



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.
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                                                          No.    2018AP1296-CR & 2018AP1214-W



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:


                                                6
                                    No.   2018AP1296-CR & 2018AP1214-W


    [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]



    4  Although the circuit court also listed several violent
incidents outlined in Garcia's report and opined that "those
things that I've read into the record I think exhibit that Mr.
Fitzgerald, while not on the prescribed medications, is
dangerous to himself and to others," the circuit court's written
order for involuntary medication was not based on Fitzgerald's
dangerousness. Rather, the circuit court checked the box on the
form order reflecting the following grounds for involuntary
medication: Fitzgerald was "mentally ill" and "charged with at
least one serious crime," and the treatment was (1) "necessary
to significantly further important government interests," (2)
"substantially likely to render the defendant competent to stand
trial," (3) "substantially unlikely to have side effects that
undermine the fairness of the trial," (4) "necessary because
alternative, less intrusive treatments are unlikely to achieve
substantially   the   same    results,"   and   (5)   "medically
appropriate."    The circuit court did not check the box
indicating treatment was necessary because Fitzgerald was
dangerous.


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                                                     No.    2018AP1296-CR & 2018AP1214-W



       ¶8        On June 20, 2018, before Fitzgerald filed his notice
of intent to pursue postdisposition relief, this court decided
Scott,          382   Wis. 2d 476.            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
supervisory writ in the               court       of appeals, the         circuit    court
"vacate[d] the [June 27] proceedings" related to the automatic
stay.           The circuit court expressed uncertainty as to whether
Scott's automatic stay occurs "after the appeal is filed or is
it automatic when there's a notice of intent to appeal filed or
is     it       automatic    if    there's    merely       an   allegation    that     the
defendant is going to file an appeal."                      In order to "err on the
side       of    caution,"    the    circuit       court    ordered   its    June     18th
involuntary medication order stayed and set the matter to be


       5
       The letter is dated June 25, 2018, and marked "Received
06-25-2018" in the upper right corner.   Counsel asserts in the
letter that it was being filed "simultaneously" with the Notice
of Intent, but according to the electronic record, the letter
was not filed until June 27, 2018.


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                                                         No.     2018AP1296-CR & 2018AP1214-W



heard again in two weeks.                    The circuit court reasoned:                   "[i]f
the    appeal      is    not    filed    I    will      lift     the     stay    because    then
clearly [the] Scott case doesn't apply," and "[i]f the appeal is

filed the State can then file a motion to lift the stay." The
circuit court then signed a written order granting a stay of the
June 18th involuntary medication order, but on that same day,
Fitzgerald filed a petition for a supervisory writ in the court
of appeals, challenging the circuit court's plan to lift the
automatic stay without requiring the State to make the showing
required under Scott.                On July 9, 2018, Fitzgerald also filed a
separate notice of appeal seeking review of the circuit court's
June   18th     Order     for    Commitment,            specifically         challenging      the

order for involuntary administration of medication.
       ¶10    On    July       12,    2018,       the        court      of    appeals     denied
Fitzgerald's petition for a supervisory writ.                                   State ex rel.
Fitzgerald v. Circuit Court for Milwaukee Cty., No. 2018AP1214-
W, unpublished order (Wis. Ct. App. July 12, 2018).                               Because the
circuit court's stay remained in effect, the court of appeals
concluded that "to the extent Scott establishes the automatic
stay as a plain duty, the circuit court has complied."                                    Id. at
5.      However,         the     court       of       appeals        also     concluded     that
"Fitzgerald        was    not    entitled         to    an     automatic      stay    until   he
actually had a pending appeal, and that did not happen until he
filed the notice of appeal on July 9, 2018."                                    Id. (emphasis
added).         Fitzgerald       petitioned            for     review    of     the   court   of
appeals decision denying a supervisory writ, which we granted.
Fitzgerald also petitioned to bypass the court of appeals for
                                                  9
                                                      No.    2018AP1296-CR & 2018AP1214-W



review    of the June 18th          underlying medication                  order, and        we
granted the bypass petition and ordered both cases to be argued
on March 20, 2019.
       ¶11    Before this court heard oral argument in Fitzgerald's
cases, the circuit court found Fitzgerald competent and resumed
the     criminal     proceedings.           Fitzgerald          pled      guilty     to    the
underlying charge on January 11, 2019, and the circuit court
sentenced him to time served.               Consequently, the State moved to
dismiss as moot both of Fitzgerald's cases, but we denied the
motion.       After oral argument, we consolidated the two cases for
the purposes of disposition.
                                II.     DISCUSSION

                           A.   Standard of Review
       ¶12    The sole issue we resolve is the constitutionality of
the     standard     for   involuntary           medication          under    Wis.        Stat.
§ 971.14(3)(dm) and (4)(b).                 This            court         presumes          the
constitutionality of a statute and tasks a party challenging it
with the "very heavy burden" of proving its unconstitutionality

"beyond a reasonable doubt."            Mayo v. Wisconsin Injured Patients
and Families Comp. Fund, 2018 WI 78, ¶¶25, 27, 383 Wis. 2d 1,
914 N.W.2d 678 (quoted source omitted).                      Citing Mayo, Fitzgerald
urges    us    to    "restore   the    balance         of     [constitutional]            power
between      the    judiciary   and    the       legislature         in    Wisconsin"       by
employing      the   standard   applied          by    the    United      States     Supreme
Court, which requires a "plain showing" or clear demonstration
of    unconstitutionality.            See    id.,       ¶¶79,       90   (Rebecca     Grassl
Bradley, J. concurring) (quoted source omitted).                             We need not
                                            10
                                                      No.    2018AP1296-CR & 2018AP1214-W



resolve     Fitzgerald's      challenge         to    the    prevailing     standard       of
review    for    challenges     to    the    constitutionality            of    a    statute
because         § 971.14(3)(dm)           and         (4)(b)       are         undoubtedly
unconstitutional to the extent they require a circuit court to
order the involuntary medication of a defendant when the Sell

factors have not been met.
                                     B.   Analysis
                        1.    Constitutional Principles
      ¶13    Under     the    Due    Process         Clause,    individuals         have   "a
significant        liberty      interest         in         avoiding     the        unwanted
administration of antipsychotic drugs."                        Washington v. Harper,
494   U.S.      210,    221     (1990).              "[O]nly     an    'essential'         or

'overriding' state interest" can overcome this constitutionally-
protected liberty interest.               Sell, 539 U.S. at 178-79 (quoting
Riggins v. Nevada, 504 U.S. 127, 134 (1992)).                             In Sell, the
United States Supreme Court addressed "whether the Constitution
permits      the     Government      to     administer          antipsychotic          drugs
involuntarily to a mentally ill criminal defendant——in order to
render that defendant competent to stand trial for serious, but
nonviolent, crimes."           Sell, 539 U.S. at 169.                    The Court held
that it does, but only under particular circumstances:

      [T]he     Constitution    permits    the    Government
      involuntarily to administer antipsychotic drugs to a
      mentally ill defendant facing serious criminal charges
      in order to render that defendant competent to stand
      trial, but only if the treatment is medically
      appropriate, is substantially unlikely to have side
      effects that may undermine the fairness of the trial,
      and, taking account of less intrusive alternatives, is


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                                                   No.    2018AP1296-CR & 2018AP1214-W


      necessary    significantly    to   further                        important
      governmental trial-related interests.
Id. at 179 (emphasis added).                 Although permissible in certain

situations, the Sell Court explained that the "administration of
drugs solely for trial competence purposes . . . may be rare."
Id.   at    180.      The    Court       established      a   four-factor         test   to
determine      whether           such      medication         is     constitutionally
appropriate.
      ¶14    "First, a court must find that important governmental
interests     are    at     stake."         Id.      "[B]ringing        to      trial    an
individual     accused      of    a     serious    crime"     against      a    person   or
property is an important interest.                 Id.    The Court did, however,
emphasize     that     prior      to    entering     an     order    for       involuntary
medication, courts "must consider the facts of the individual
case in evaluating the Government's interest in prosecution."
Id.
      ¶15    "Second,       the    court    must     conclude       that       involuntary
medication will significantly further" the government's interest
in prosecuting the offense.                 Id. at 181.            This means that a
court      "must     find    that        administration        of    the        drugs    is
substantially likely to render the defendant competent to stand
trial" and "unlikely to have side effects that will interfere
significantly with the defendant's ability to assist counsel in
conducting a trial defense, thereby rendering the trial unfair."
Id.
      ¶16    "Third,      the     court     must    conclude        that       involuntary
medication is necessary to further those interests."                              Id.    In


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                                                       No.           2018AP1296-CR & 2018AP1214-W



other words, "[t]he court must find that any alternative, less
intrusive treatments are unlikely to achieve substantially the
same results."          Id.    In order to make this finding, the deciding

court "must consider less intrusive means for administering the
drugs,   e.g.,      a    court      order    to       the       defendant      backed         by    the
contempt power, before considering more intrusive methods."                                        Id.
In other words, the Sell Court considered an order directed at
the defendant, requiring him to accept medication or be found in
contempt of court, to be less intrusive than ordering an entity
like DHS to forcibly administer medication to the defendant.
       ¶17   "Fourth, . . . the                  court            must        conclude             that
administration of the drugs is medically appropriate, i.e., in
the   patient's best medical                interest            in    light   of his          medical
condition."        Id.    The Sell Court explained that "[t]he specific
kinds of drugs at issue may matter here as elsewhere" because
"[d]ifferent kinds of antipsychotic drugs may produce different
side effects and enjoy different levels of success."                                    Id.
       ¶18   The Court explained that "these standards . . . seek[]
to    determine     whether         involuntary        administration              of     drugs      is
necessary     significantly           to    further         a     particular        governmental
interest,     namely,         the     interest        in        rendering         the    defendant
competent    to stand trial,"               and "[a] court need                    not    consider
whether to allow forced medication for that kind of purpose, if
forced medication is warranted for a different purpose, such as
[one] . . . related              to        the        individual's                dangerousness,
or . . . health."             Id. at 181-82.                 The Court explained                   that
"[t]here     are    often      strong      reasons          for       a   court    to    determine
                                                 13
                                                  No.     2018AP1296-CR & 2018AP1214-W



whether forced administration of drugs can be justified on these
alternative     grounds     before      turning      to      the    trial       competence

question," in part because "the inquiry into whether medication
is permissible, say, to render an individual nondangerous is
usually more 'objective and manageable' than the inquiry into
whether      medication     is    permissible           to    render       a     defendant
competent."     Id. at 182 (quoted source omitted).

       The medical experts may find it easier to provide an
       informed opinion about whether, given the risk of side
       effects, particular drugs are medically appropriate
       and necessary to control a patient's potentially
       dangerous behavior (or to avoid serious harm to the
       patient himself) than to try to balance harms and
       benefits related to the more quintessentially legal
       questions of trial fairness and competence.
Id.

                       2.   Wisconsin Stat. § 971.14
       ¶19   Wisconsin Stat. § 971.14 requires a circuit court to
enter an order for involuntary medication to restore a criminal
defendant's      competency       to      proceed       provided       the       statutory
parameters are met.         Under the statute, the circuit court shall

order a competency examination if "there is reason to doubt a
defendant's competency to proceed."                 § 971.14(1r)(a), (2).               The
circuit      court   appoints      "one     or    more       examiners         having   the
specialized knowledge determined by the court to be appropriate
to    examine   and report       upon   the condition          of    the       defendant."
§ 971.14(2)(a).        "The      examiner       shall    submit     to     the    court   a
written report."       § 971.14(3).             Among other things, the report
must include:


                                           14
                                              No.     2018AP1296-CR & 2018AP1214-W


          (c)   The   examiner's   opinion   regarding the
     defendant's present mental capacity to understand the
     proceedings and assist in his or her defense.

          (d) If the examiner reports that the defendant
     lacks competency, the examiner's opinion regarding the
     likelihood that the defendant, if provided treatment,
     may be restored to competency within the time period
     permitted under sub. (5)(a). . . .

          (dm) If sufficient information is available to
     the examiner to reach an opinion, the examiner's
     opinion on whether the defendant needs medication or
     treatment and whether the defendant is not competent
     to refuse medication or treatment.   The defendant is
     not competent to refuse medication or treatment if,
     because of mental illness, developmental disability,
     alcoholism   or  drug   dependence,  and   after  the
     advantages and disadvantages of and alternatives to
     accepting the particular medication or treatment have
     been explained to the defendant, one of the following
     is true:

                1. The defendant is incapable of expressing
           an   understanding    of   the  advantages   and
           disadvantages    of   accepting  medication   or
           treatment and the alternatives.

                2. The defendant is substantially incapable
           of applying an understanding of the advantages,
           disadvantages and alternatives to his or her
           mental    illness,    developmental   disability,
           alcoholism or drug dependence in order to make an
           informed choice as to whether to accept or refuse
           medication or treatment.
§ 971.14(3)(c)-(dm) (emphasis added).
     ¶20   After the report's submission, the circuit court must
hold a hearing.      Wis. Stat. § 971.14(4).               Unless the parties
waive   their   opportunity   to   present          additional   evidence,    the
circuit    court     shall     hold           an      evidentiary         hearing.
§ 971.14(4)(b).     If the State proves by clear and convincing
evidence   "that   the   defendant       is    not      competent    to     refuse

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                                                      No.      2018AP1296-CR & 2018AP1214-W



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."               § 971.14(4)(b) (emphasis added).6                 In
other       words,        the   circuit     court        "shall"     order     involuntary
medication           or     treatment       if     the      standard      described       in
§ 971.14(3)(dm) is met:              either the defendant is "incapable of
expressing an understanding of the advantages and disadvantages"
of     medication         or    treatment    or      "substantially          incapable   of
applying an understanding of" his mental illness "in order to
make    an      informed choice"        "to accept          or refuse     medication      or
treatment."               The    statute         additionally       provides        "whoever

administers the medication or treatment to the defendant shall
observe appropriate medical standards."                        § 971.14(4)(b).

           3.    Wisconsin Stat. § 971.14(3)(dm) and (4)(b) do not
                conform with Sell's constitutional parameters.

       ¶21      As    a    preliminary      matter,       we    explain      this    court's
denial of the State's motion to dismiss Fitzgerald's cases on
mootness grounds.               "An issue is moot when its resolution will
have       no    practical       effect     on     the      underlying       controversy."
Portage Cty. v. J.W.K., 2019 WI 54, ¶11, ___ Wis. 2d ___, ___

N.W.2d ___ (quoted source omitted); see also City of Racine v.


       6
       When a defendant claims to be competent, Wis. Stat.
§ 971.14(4)(b) first requires the State to prove by clear and
convincing evidence that the defendant is not competent.
Because Fitzgerald previously conceded he was not competent,
that portion of the statute is not at issue.


                                             16
                                                          No.     2018AP1296-CR & 2018AP1214-W



J-T Enters. of Am., Inc., 64 Wis. 2d 691, 700, 221 N.W.2d 869

(1974) ("This court has consistently adhered to the rule that a
case is moot when 'a determination is sought which, when made,
cannot have any practical effect upon an existing controversy.'"
(quoted source omitted)).                    As a general matter, we decline to
reach moot issues.               J.W.K., __ Wis. 2d __, ¶12.                     Fitzgerald is
no    longer subject to               the   medication          order    he challenges;         he
regained      competency         and    pled      guilty.          Therefore,      the   issues
presented in reviewing that order are moot.                              See Winnebago Cty.
v. Christopher S., 2016 WI 1, ¶31, 366 Wis. 2d 1, 878 N.W.2d 109
(explaining that "when an appellant appeals an order to which he
or she is no longer subjected," the case is moot).

       ¶22    We may, however, decide an otherwise moot issue if it
fits under one of the following exceptions:                             (1) "the issues are
of great public importance;" (2) "the constitutionality of a
statute      is    involved;"         (3)     the      situation     arises      so    often    "a
definitive decision is essential to guide the trial courts;" (4)
"the issue is likely to arise again and should be resolved by
the court to avoid uncertainty;" or (5) the issue is "capable
and    likely      of   repetition          and     yet    evades       review    because      the
appellate     process       usually         cannot      be      completed   and       frequently
cannot even be undertaken within a time that would result in a
practical         effect    upon       the     parties."            G.S.    v.     State,      118
Wis. 2d 803, 805, 348 N.W.2d 181 (1984); see also J.W.K., __
Wis. 2d __,        ¶12.          In    this    case,         Fitzgerald     challenges         the
constitutionality           of    Wis.       Stat.      § 971.14,       which     presents     an
issue    of   great        public      importance.              Additionally,         competency
                                                  17
                                                  No.     2018AP1296-CR & 2018AP1214-W



restoration for the purpose of prosecuting a criminal defendant
arises often enough to warrant a definitive decision in order to
guide the circuit courts regarding the constitutional standard
for    ordering    involuntary    medication        to     restore      a    defendant's
competency to proceed.           Accordingly, we choose to examine the
constitutionality of § 971.14.7              We hold that § 971.14(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, 539 U.S.

166.
       ¶23   Fitzgerald     argues      that       Wis.      Stat.          § 971.14   is
inconsistent with the factors outlined in Sell, resulting in an

unconstitutional violation of his protected liberty interest in
avoiding     involuntary     medication.           He     construes         § 971.14   to
"permit[] a court to commit a person accused of a crime for
involuntary treatment . . . to restore competency based on his
inability     to   understand,     express         or     apply    the       advantages,
disadvantages      and    alternatives       to    treatment       or       medication,"
without requiring the State to satisfy the Sell factors.
       ¶24   The   State    contends     that       Wis.      Stat.         § 971.14   is
constitutional,      arguing     that    Sell           requires     an      involuntary



       7
       Fitzgerald additionally argues that the circuit court
incorrectly calculated his sentence credit during the hearing on
the order for involuntary medication.     We do not review this
issue because he pled guilty and was sentenced to time served;
the issue is moot and review is unwarranted under the exceptions
to dismissal for mootness.


                                        18
                                              No.   2018AP1296-CR & 2018AP1214-W



medication order issued by a circuit court to meet the Sell

standard and does not apply to a statute like § 971.14 governing
the procedures the government must follow in order to obtain an
involuntary medication order.           Even if Sell does control the
statute,     the   State    argues    that    § 971.14     is    constitutional
because its language partially encompasses the Sell factors, and
"the circuit courts of the State of Wisconsin have been directed
to comply with the Sell test when issuing orders for commitment
and involuntary medication" using Form CR-206 (which lists the
Sell factors), the Judicial Benchbook, and Wis JI——Criminal SM-
50 (2018).
     ¶25   We      hold     that     Wis.     Stat.       § 971.14(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.                  Paragraph
(4)(b) requires the circuit court to "issue an order that the
defendant is not competent to refuse medication" if the State
proves that the defendant is not competent to refuse treatment
under the standard set forth in paragraph (3)(dm).                  In general
terms, paragraph (3)(dm) considers a defendant not competent to
refuse treatment if he is either "incapable of expressing an
understanding"     of     the   proposed     medication     or   treatment     or
"substantially incapable of applying an understanding" of his
mental illness "in order to make an informed choice" regarding
medication    or   treatment.        Under   this   statutory      standard,    a
circuit court must order involuntary medication to restore trial
competence regardless of whether the factors outlined in Sell
                                       19
                                                         No.     2018AP1296-CR & 2018AP1214-W



are    met.8      The mere inability                of a       defendant     to    express       an
understanding of medication or make an informed choice about it
is     constitutionally            insufficient          to     override     a     defendant's
"significant          liberty         interest          in      avoiding     the      unwanted
administration of antipsychotic drugs."                            Harper, 494 U.S. at

221.
       ¶26     A comparison of the text of the statutory standard
with the constitutional standard outlined in Sell illustrates
how    the     statute        falls    short      of     protecting        the     significant
liberty      interest         in    avoiding      the    unwanted      administration            of
psychotropic drugs.                 Specifically, paragraph (3)(dm) does not
require the circuit court to find that an important government

"interest       in   bringing         to    trial       an     individual    accused        of    a
serious      crime"      is    at     stake,   as       required     by     the    first    Sell
factor.      Sell, 539 U.S. at 180.                 Wisconsin Stat. § 971.14 merely
requires       the   circuit        court    to     find       probable     cause    that    the
defendant committed a crime——not necessarily a serious one.                                  See
§ 971.14(1r).          Nor does the statute require an individualized
assessment of the circumstances surrounding the case, which may
impact the circuit court's application of this factor.                                Even for
serious        crimes,        "[s]pecial       circumstances           may        lessen"    the



       8
       The statute directs that the circuit court "shall" issue
the order for involuntary medication if paragraph (3)(dm) is
met.     Wis. Stat. § 971.14(4)(b).      "Shall" is "presumed
mandatory."   State ex rel. DNR v. Wisconsin Court of Appeals,
Dist. IV, 2018 WI 25, ¶13 n.7, 380 Wis. 2d 354, 909 N.W.2d 114
(quoted source omitted).


                                               20
                                                  No.     2018AP1296-CR & 2018AP1214-W



importance of the State's interest in trying the case.                              Sell,

539 U.S. at 180.          For example, "[t]he defendant's failure to
take drugs voluntarily . . . may mean lengthy confinement in an
institution for the mentally ill——and that would diminish the
risks that ordinarily attach to freeing without punishment one
who has committed a serious crime."                     Id.    In other words, the
"facts of the individual case" determine the importance of the
government's interest.            Id.     Paragraph (3)(dm) leaves no room
for weighing such details.
       ¶27    The   directive     to    order    medication      under      Wis.    Stat.
§ 971.14(3)(dm) similarly fails to include consideration of the
second      Sell    factor:     "that     administration         of   the    drugs    is

substantially likely to render the defendant competent to stand
trial" and "unlikely to have side effects that will interfere
significantly with the defendant's ability to assist counsel in
conducting a trial defense, thereby rendering the trial unfair."
Sell, 539 U.S. at 181.            While the expert's report must include
"the       examiner's   opinion     regarding       the       likelihood     that    the
defendant, if provided treatment, may be restored to competency
within the [statutory] time period,"9 paragraph (3)(dm) does not
require      the    circuit   court      to     conclude       that   medication      is
substantially likely to restore a defendant's competency or to
consider whether side effects "will interfere significantly with
the defendant's ability to assist counsel in conducting a trial
defense."      Sell, 539 U.S. at 181.

       9   Wis. Stat. § 971.14(3)(d).


                                          21
                                                          No.        2018AP1296-CR & 2018AP1214-W



       ¶28   As to the third Sell factor, the statute falls short

of the constitutional prerequisite espoused in Sell requiring
the   circuit      court    to   conclude           that        involuntary         treatment     is
necessary     to       further   important           government             interests.           This
factor commands the circuit court to consider and rule out——as
unlikely     to        achieve     substantially                the        same     results——less
intrusive options for treatment as well as for administering the
drugs.        In       contrast,     Wis.        Stat.           § 971.14(4)(b)            mandates
involuntary       medication       if    the     State          establishes          pursuant     to
paragraph (3)(dm) the defendant's inability to either express an
understanding of the advantages and disadvantages of medication
or    to   make    an    informed       choice       about           it,   regardless       of   the

existence of less intrusive but nonetheless effective options.
       ¶29   The fourth Sell factor requires the circuit court to
conclude that medication is "medically appropriate" meaning "in
the   patient's best medical              interest              in    light       of his    medical
condition."        Sell, 539 U.S. at 181.                        In contrast, Wis. Stat.
§ 971.14(4)(b) imposes an obligation on "whoever administers the
medication        or     treatment        to        the         defendant"          to     "observe
appropriate        medical       standards."                    § 971.14(4)(b)            (emphasis
added).      The State argues "appropriate medical standards" might
encompass     a    consideration          of        the     defendant's            best    medical
interest but paragraph (4)(b) addresses the administration of
medication or treatment, not whether such treatment should be
ordered in the first place.               Nothing in the statute empowers the
person administering the drugs to override the circuit court's
order that the drugs be administered.                           Sell requires the circuit
                                               22
                                                  No.    2018AP1296-CR & 2018AP1214-W



court       to   conclude    that   the    administration       of   medication    is

medically        appropriate,     not   merely    that    the   medical    personnel
administering the drugs observe appropriate medical standards in
the dispensation thereof.
       ¶30       The State's reliance on extrinsic materials to support
the constitutionality of Wis. Stat. § 971.14(3)(dm) and (4)(b)
is unavailing.           Although circuit courts must use Form CR-206,10
which lists the Sell factors,11 and the circuit court used that
form to order the involuntary medication of Fitzgerald in this
case, a judicially-created form cannot save a constitutionally
infirm statute.          While Form CR-206 directs the circuit court to
make findings consistent with Sell, the statute requires the

circuit court to order treatment if the statutory standard is
met,        regardless      of   whether    the    Sell     findings      are   made.
Likewise, the Special Materials to the jury instructions and the
Judicial Benchbook cited by the State cannot alter or supplement



       10
       Wisconsin    Stat.   § 971.025(1)   ("In    all   criminal
actions . . . the parties and court officials shall use the
standard court forms adopted by the judicial conference.").
       11
       Form CR-206 lists the Sell factors, but does not identify
their source. See Sell v. United States, 539 U.S. 166 (2003).
Additionally, the form does not address the gaps between the
standard in Wis. Stat. § 971.14(3)(dm) and (4)(b) and the
constitutional principles set forth in Sell.        The judicial
conference may wish to consider modifying this form to clarify
that circuit courts must follow Sell regardless of whether the
standard in § 971.14(3)(dm) and (4)(b) has been met.     See Wis.
Stat. § 758.18(1) ("The judicial conference shall adopt standard
court forms for use by parties and court officials in all civil
and criminal actions and proceedings in the circuit court[.]").


                                           23
                                                       No.       2018AP1296-CR & 2018AP1214-W



the statutory text enacted by the legislature, which binds the
circuit courts.            See Hefty v. Strickhouser, 2008 WI 96, ¶33

n.11,    312     Wis. 2d 530,          752     N.W.2d 820         (explaining       that     the
Judicial     Benchbook         "is    not     intended       to     stand     as   independent
legal authority for any proposition of law" and is merely "an
informed      and    insightful            discussion       of    practice");        State    v.
Gilbert, 115 Wis. 2d 371, 379, 340 N.W.2d 511 (1983) (explaining
that special materials are "persuasive" authority).                                 We do not
read    words    into      a    statute      regardless          of   how     persuasive     the
source may be; rather, we interpret the words the legislature
actually enacted into law.                     "Under the omitted-case canon of
statutory interpretation, '[n]othing is to be added to what the

text    states      or   reasonably          implies       (casus     omissus      pro   omisso
habendus est).           That is, a matter not covered is to be treated
as not covered.'"              Lopez-Quintero v. Dittman, 2019 WI 58, ¶18,
___ Wis. 2d ___, ___ N.W.2d ___ (quoting Antonin Scalia & Bryan
A. Garner, Reading Law:                    The Interpretation of Legal Texts 93
(2012)).       "One of the maxims of statutory construction is that
courts should not add words to a statute to give it a certain
meaning."           Fond       Du    Lac    Cty.      v.     Town     of     Rosendale,      149
Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989).
       ¶31    Application of the statutory mandate requires an order
for    involuntary         medication         based    solely         on    the    defendant's
inability to express an understanding of treatment or make an
informed choice of whether to accept or refuse it, resulting in
the unconstitutional deprivation of the defendant's significant
liberty      interest      in       avoiding    the        unwanted        administration     of
                                               24
                                                       No.    2018AP1296-CR & 2018AP1214-W



medication.          The fortuity of circuit courts sometimes following
Sell as a result of using Form CR-206, the special materials to

the    jury     instructions,        and      the    Benchbook      despite       Wis.    Stat.
§ 971.14's       contrary        directive      may     ensure      that    certain      court
orders      comport       with     the   Constitution         but    cannot       render   the
statute itself constitutional.
       ¶32     To the extent Wis. Stat. § 971.14(3)(dm) and (4)(b)
require circuit courts to order involuntary medication when the
Sell factors have not been met, the statute unconstitutionally
infringes       the       individual       liberty      interest      in    avoiding       the
unwanted administration of anti-psychotropic drugs.                           Our holding
does     not    preclude         circuit      courts    from      ordering        involuntary

medication       for      purposes       of   restoring       a    criminal       defendant's
competency provided the circuit courts apply the standard set
forth in Sell.
       ¶33     Applying this holding to the present case, the State
conceded       at    oral    argument         that    the    circuit       court    did    not
consider the side effects of the proposed medication or whether
those        side        effects     would       interfere          significantly          with
Fitzgerald's ability to assist in his defense.12                           After reviewing
the circuit court's decision, we agree with the State.                                     The
circuit court never found, as it must, "that administration of
the     drugs       is    substantially        likely    to       render    the    defendant


       12
       The box the circuit court checked on Form CR-206 listed
the Sell factors, including the second factor, but the court
never addressed the side effects on the record.


                                               25
                                                        No.        2018AP1296-CR & 2018AP1214-W



competent to stand trial" and "unlikely to have side effects
that will interfere significantly with the defendant's ability
to   assist      counsel   in      conducting            a     trial       defense,       thereby
rendering the trial unfair."                 See Sell, 539 U.S. at 181.                          We

therefore     vacate    the     circuit       court's              order    for     involuntary
medication.
                              4.    Supervisory Writ
     ¶34    In    his   petition       for    a     supervisory             writ,    Fitzgerald
argues this court should exercise its superintending authority
and hold that the stay established in Scott begins automatically
upon entry of the order for involuntary medication.                                  The State
opposes his request, arguing that "Fitzgerald did not establish

the requisite elements for a supervisory writ" and requests that
we "decline to exercise [our] superintending authority" to grant
relief to Fitzgerald.                 The court is equally divided on the
issue of when the automatic stay established in Scott begins.
Therefore,    we    affirm      the    decision           of       the     court    of    appeals
denying Fitzgerald's petition for a supervisory writ.                                 See State
v. Garcia, 2019 WI 40, ¶1, 386 Wis. 2d 386, 925 N.W.2d 528 (per
curiam) (affirming the court of appeals decision because the
court was equally divided); see also, Gruhl Sash & Door Co. v.
Chicago, M. & St. P. Ry. Co., 173 Wis. 215, 215, 180 N.W. 845
(1921)   (explaining       that     where         the     supreme          court    is    equally
divided,    the    "established        rule"        is        to     affirm    the       court   of
appeals decision).
                                III.      CONCLUSION


                                             26
                                                   No.    2018AP1296-CR & 2018AP1214-W



     ¶35   Circuit     courts       may    order     involuntary         medication   to
restore a defendant's competency to proceed in a criminal case,
provided   the    four      factors       the    United     States       Supreme   Court
established      in   Sell    are     met.         To    the   extent      Wis.    Stat.

§ 971.14(3)(dm)       and    (4)(b)       require       circuit    courts    to    order
involuntary medication when the Sell standard has not been met,
the statute is unconstitutional.                 Because the circuit court did
not apply the Sell factors, we vacate the circuit court's order.
     ¶36   Because the court is equally divided on Fitzgerald's
petition to review the court of appeals decision denying his
request for a supervisory writ, we affirm the decision of the
court of appeals.

     By the Court.——The order of the circuit court is vacated;
the decision of the court of appeals is affirmed by an equally
divided court.
     ¶37   SHIRLEY     ABRAHAMSON,         J.,    withdrew        from   participation
before oral argument.




                                           27
                                               No.    2018AP1296-CR & 20181214-W.pdr




       ¶38       PATIENCE DRAKE ROGGENSACK, C.J.                 (concurring).          The
issue      presented by      this     review is     whether the circuit             court
unconstitutionally           ordered     Raytrell      K.        Fitzgerald        to    be
involuntarily medicated because his mental condition prevented
him from being competent to stand trial.                     The majority opinion
focuses its attention on Wis. Stat. § 971.14(3)(dm) and opines
that paragraph (3)(dm) is unconstitutional unless a gloss from
Sell v. United States, 539 U.S. 166 (2003) is applied to the

statute.1
       ¶39       I agree that generally the Sell factors must enter
into       the   circuit    court's    consideration        of    whether     to    order
involuntary medication so as to render an incompetent defendant
competent to stand trial.              However, there are occasions when a
defendant        who   is   not   competent   to    stand    trial    also     will      be
dangerous to himself or to others.                 In those occasions, the Sell
factors will not be relevant.                 As the United States Supreme

Court has explained:

       A court need not consider whether to allow forced
       medication for that kind of purpose, if forced
       medication is warranted for a different purpose, such
       as . . . the individual's dangerousness.
Id. at 181-82 (citing Washington v. Harper, 494 U.S. 210, 225-26

(1990)).           Furthermore,       determining      whether       medication          is
necessary to control dangerous behavior is often an easier task
for a medical expert than it is for the expert to balance the


       1   Majority op., ¶2.


                                          1
                                                       No.   2018AP1296-CR & 20181214-W.pdr


harms and benefits related to opining on legal competence.                                 Id.

at 182.
      ¶40    Wisconsin         Stat.         § 971.14          addresses          competency
proceedings.        Paragraph (1r) instructs that "[t]he court shall
proceed under this section whenever there is reason to doubt a
defendant's competency to proceed."                          The statute permits the
court to order an examination of the defendant "for competency
purposes      at    any    stage       of        the    competency       proceedings       by
physicians or other experts."                § 971.14(2)(g)

      ¶41    The record reveals that Fitzgerald was removed from
outpatient treatment because of incidents of violent conduct in
relation to others.             This was not the focus of the circuit
court.      However, a statutory provision in addition to the forced
medication     found      in   Wis.    Stat.         § 971.14(3)(dm)       on     which    the
majority opinion focuses, is found in paragraph (2)(f).
      ¶42    Wisconsin         Stat.        § 971.14(2)(f)           provides       that    a
defendant who is charged with a crime, is incompetent and also

is    dangerous      to     himself         or       others     is   not        affected    by
§ 971.14(3)(dm).          Instead, paragraph (2)(f) provides a different
test for refusing medication.                It provides that a 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."              § 971.14(2)(f).           Therefore,       if
medication     is   ordered      under       paragraph         (2)(f),     as    the   United
States    Supreme    Court has         explained,            the Sell factors          do not
apply.      Sell, 539 U.S. at 182.



                                                 2
                                                    No.    2018AP1296-CR & 20181214-W.pdr


     ¶43    While I join the majority opinion's concern for adding
a Sell gloss to our interpretation of Wis. Stat. § 971.14(3)(dm)

in order to preserve its constitutionality, I write to point out
that if a defendant is dangerous to himself or others, ordering
treatment       for       that   condition,       which    will     likely   return      the
defendant       to    competency,      does       not     employ    the   Sell    factors.
Because     I        am    concerned     that      paragraph        (2)(f)       could    be
overlooked, I write in concurrence to point up its use when
appropriate.

     ¶44    I        am     authorized    to       state     that     Justice      ANNETTE
KINGSLAND ZIEGLER joins this concurrence.




                                              3
    No.   2018AP1296-CR & 20181214-W.pdr




1
