In Brief: Judge wrongly granted medication order, appeal argues

The case: State v L.A.G.

Case no.: 22AP386

Filed in: District III Court of Appeals

Circuit Judge: Scott Corbett, Marathon County

Filing Attorneys: Kelsey Loshaw and Lucas Swank

Title: Regional attorney manager and assistant state public defender, respectively

Law firm / agency: Office of the State Public Defender

"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.

Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story. 

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Issues presented

1. Did the state offer sufficient evidence to support an order for involuntary medication under Sell v. United States?

The circuit court found that the state met all four Sell factors.

2. Should the involuntary medication orders be vacated because the court failed to find that L.A.G. was incompetent to refuse medication or treatment?

The circuit court made no findings on the record or in its written order that L.A.G. was incompetent to refuse medications but still signed an order to involuntarily medicate L.A.G.

Statement of the case and facts

This case stems from a civil dispute between L.A.G. and R.O., regarding the ownership of a home in Mosinee. During the pendency of the civil case, L.A.G.

was charged with stalking for conduct alleged from July 13, 2020 through May 5, 2022.

The attorneys add in a footnote, "Per CCAP, the dispute dates back to at least 2018 when

R.O. first filed a civil suit against L.A.G."

We now return to our featured brief.

L.A.G.’s alleged conduct caused R.O. to “suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.”

That conduct consisted of the incidents listed below, the brief said.

• July 13, 2020: L.A.G. parked in the alley behind the home and yelled at a contractor. When R.O. came out, L.A.G. said “You’re going down,” insulted R.O., and yelled about finances before driving away.

• September 14, 2021: L.A.G. had a third party put a “28 Day Notice Terminating Tenancy” on the door of the home.

• Unknown dates: L.A.G. reported to police that R.O. had stolen her garage doors when he replaced the garage doors of the home and wanted him charged with harassment.

• May 5, 2022: L.A.G. posted the house for sale on Facebook Marketplace with this language “Contact homeowner only – L[].” At the time, R.O. had a lis pendens through the civil suit.

A "lis pendens" is a notice designed to give information about the existence and scope of real property involved in litigation, according to Cornell Law School's Legal Information Institute.

L.A.G. was charged with disorderly conduct in July, 2022. In August, 2023, she was found incompetent, committed to the care of the state Department of Health Services, and remanded into custody.

Just over halfway through the 12-month commitment, Colleen Considine — a psychiatrist at Mendota Mental Health Institute — filed a motion for involuntary medication along with an individual treatment plan. The treatment plan lists a diagnosis of “Unspecified Schizophrenia Spectrum and Other Psychotic Disorder” and discusses L.A.G.’s physical health as well as past treatment with antipsychotic medication.

That treatment plan also listed seven total anti-psychotics to be provided “either in combination or in succession.” An addendum to the treatment plan included an open-ended list of long-acting injectable anti-psychotics that may forcibly administered. The plan contained a similarly open-ended list of mood stabilizers to be used “[i]f there is limited symptom improvement with an anti-psychotic medication and/or she exhibits symptoms consistent with severe mood instability.”

At a hearing on the motion, Dr. Considine testified that L.A.G. presented with “paranoia, delusional ideations, thought disorganization, [and] agitation.” Dr. Considine testified L.A.G.’s symptoms would be treated with antipsychotic medication, and “[a]ny of those antipsychotics medications could be beneficial for her symptoms of psychosis.”

Dr. Considine stated that she thought L.A.G. was unable to apply her understanding of the medications to herself, but did not check those boxes

because the form asks about L.A.G.’s competency to refuse only if needed to treat based on dangerousness.

During argument, counsel stated that L.A.G. had been in-custody for over 200 days at the time of the hearing, which lessened the state’s interest in prosecution. Counsel also noted that the case “amounts to an argument over a property dispute from several years ago."

When given an opportunity to make a statement, L.A.G. stated that Dr. Considine had not explained to L.A.G. what delusions she suffered from. All she was told is that she spoke “fast and rapid.”

L.A.G. discussed medications she had tried in the past, including lorazepam, producing “many serious side effects,” including suicidal ideation, the court told her to “stay on the issue of the involuntary medication.”

The court found the state has an important interest in prosecuting L.A.G. because stalking is a felony with a maximum penalty of three and a half years and L.A.G. was charged in seven other (misdemeanor) cases. It also found that Dr. Considine provided an individual treatment plan and testified that medication was necessary to treat L.A.G.’s mental illness. The court found that the serious side effects discussed were “highly unlikely to be encountered.”

Argument

Prior to the beginning of the property dispute in 2018, L.A.G. had no criminal convictions. She was charged in this case with stalking for a single in- person confrontation, having someone tape an eviction notice to the door of the property, reporting the garage doors stolen, and listing the house for sale on Facebook Marketplace.

By the time the court ordered involuntary medication, L.A.G. had 211 days of credit — 158 of which were spent in jail. Under these facts, the state

sought — and the court ordered — L.A.G. forcibly medicated.

Under the Due Process Clause, L.A.G. has a “‘significant liberty interest’ in refusing involuntary medication.”

Involuntary treatment for individuals deemed incompetent to stand trial is focused on rendering a person — who is presumed innocent — competent, so they can be prosecuted.

In Sell v United States, the U.S. Supreme Court limited the conditions under which involuntary medication is permitted for trial competence purposes. Those conditions are:

• the treatment is medically appropriate;

• is substantially unlikely to have side effects that may undermine the fairness of the trial;

• takes account of less intrusive alternatives; and

• is necessary significantly to further important governmental trial-related interests.

The state’s interest in prosecuting L.A.G. is minimal. Under Sell, the state must first prove that “important governmental interests are at stake.”

The offense L.A.G. was charged with is not serious. The court found that stalking is serious because it is a felony punishable by three-and-one-half years’ prison.  However, the Legislature has designated numerous offenses as “serious” in various contexts, and stalking under Wis. Stat. § 940.32 appears in none of them.

This case is primarily the continuation of a property dispute that was already being handled in civil court. Thus, there is no important interest in prosecuting this matter. Furthermore, the circuit court did not discuss the specific facts of this case — only noting the charge and that L.A.G. had seven other open cases.

L.A.G. remained in-custody 157 days before she was transported to Mendota; it was only after 211 days that the court ordered involuntary medication. By that point, any interest the state may have had in bringing L.A.G. to trial had long since dissipated. Any interest they had was not important and did not overcome L.A.G.’s constitutional rights to bodily autonomy and to be free of forcible medication.

Eleven different medications were proposed.

Dr. Considine provided little in the way of testimony regarding why she recommended the medications or dosages she did.

What is absent from the record is any evidence that this plan was tailored to L.A.G., rather than a list of antipsychotics that are appropriate to treat any

individual with schizophrenia. As such, it is unconstitutionally generic.

In addition to being unconstitutionally generic, aspects of the treatment plan are not medically appropriate.

Here, what we have are a number of medications proposed at dosages above what has been shown to be effective or indicated for treatment of L.A.G.’s

diagnosis, medications not designed for competency restoration, and medications that should not be administered to someone who is not already stabilized on antipsychotics.

The circuit court failed to make necessary findings regarding L.A.G.’s competency to refuse medications. Moreover, the evidence available did not show that Dr. Considine adequately explained the advantages, disadvantages, and alternatives to medication to L.A.G.

The only time L.A.G.’s competency to refuse medication was discussed was when defense counsel cross-examined Dr. Considine on why the related boxes were not checked on the treatment plan. Dr. Considine opined that L.A.G. was “unable of applying the understanding of the advantages and disadvantages and alternatives of medication to herself,” but did not explain how she reached this opinion.

The only evidence of the required explanation was Dr. Considine testifying that she talked with L.A.G. about the advantages and disadvantages of medications and that L.A.G. “was provided written information regarding some of the medications on the treatment plan."

Without more, there is no way to know if the explanation given by Dr. Considine was reasonable or adequate.

Because the state failed to prove the Sell factors and the court failed to make findings that she was incompetent to refuse medication, L.A.G. respectfully requests the Court vacate the order for involuntary medication and order the circuit court deny the state’s motion for the same.

"Dangerousness" not a reason for involuntary medication under competency law, court rules

A pretrial defendant's dangerous is not a reason, under the state law governing competency, to order involuntary medication for the person, the state Court of Appeals ruled this week.

Instead, Appellate Judge Sara Geenen wrote for the three-member District I Court of Appeals panel, the order must be supported by findings under a law that specifically authorizes such medication orders.

Geenen was joined in her opinion by Appellate Judges M. Joseph Donald and Pedro Colon.

"Naomi" was in a psychiatric hospital in January, 2023, when she allegedly hit a nurse and kicked a law enforcement officer in the shin. She was charged in Milwaukee County Circuit Court with misdemeanor battery and obstructing and officer.

A judge found her incompetent to proceed and ordered commitment to Mendota Mental Health Institute for treatment.

Three weeks later, however, she was still sitting in the jail. She allegedly slapped a nurse dispensing medications and, as a result, was charged with felony battery by a prisoner.

A judge again ordered a competency evaluation. Before it was held, the Department of Health Services requested an involuntary medication order and a treatment plan by Kevin Murtaugh, a Mendota psychiatrist.

"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,' ” Geenen wrote.

Milwaukee County Circuit Judge David Swanson found Naomi incompetent to proceed and granted the commitment and involuntary medication requests.

Swanson believed that state Supreme Court precedent "authorized the courts to involuntarily medicate incompetent defendants based on a finding of dangerousness," Geenen said.

Naomi appealed, arguing the state statute regarding competency has its own "involuntary medication provision which contemplates involuntary medication only for the purpose of rendering a defendant competent to stand trial, and it does not authorize involuntary medication based on a defendant’s dangerousness." she wrote.

The panel agreed. Defendants committed under the competency statute cannot be involuntarily medicated because of dangerousness unless there are appropriate proceedings based on "some other statute that authorizes involuntary medication based on the defendant’s dangerousness," Geenen said. "Any request for involuntary medication due to dangerousness would then be made in the parallel proceedings."

The panel also rejected the argument that the Supreme Court cleared the way for the involuntary medication "without grounding that order in some other Wisconsin statutory authority that specifically authorizes dangerousness as a basis for involuntary medication."

The Roundup: An election recount appeal and a question of understanding

Or interesting stuff we couldn't get to otherwise. These are largely lifted from the filed documents themselves. If I add anything any background, it is not indented.

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Brief of appellant

Case no: 24AP1233

Case name: Tammy Gonfiantini v Rock County Board of Canvassers

Court of Appeals District: IV

Filing attorney: Erik Olsen

Circuit Court: Rock County

Judge: Jeffrey Kuglitsch

Statement of the issues

Issue One: Whether, under the circumstances of this case, the requirement that the clerk initial or endorse three absentee ballots was directory or mandatory.

The circuit court ruled that the requirement was merely directory and dismissed the case.

Issue Two: Whether the circuit court should have set aside the board of canvass’s assumption that the three defective absentee ballots were the result of “clerk’s error” because the board did not make a finding based on substantial evidence.

The circuit court relied on, and did not overturn, the board of canvass assumption that the unendorsed ballots were a “clerk error.”

Statement of the facts

This case involves an election for the position of Rock County Supervisor for District. The election was held on April 2nd of 2024. Tammy Green Gonfiantini and Regenia Stevens ran for the position. After the canvass of the election, Stevens was leading Gonfiantini by three votes, accordingly Gonfiantini timely demanded a recount. The Board of Canvassers of Rock County convened on April 12, 2024 to conduct the recount. During the recount, Gonfiantini challenged three absentee ballots on the grounds that these three absentee ballots were not initiated or endorsed by the clerk and that portion of the ballot had been left blank. All three of these challenged unendorsed ballots were votes for Stevens. The Board of Canvassers denied the challenges to all three of these unendorsed ballots, giving the reason that the voter should not lose their vote due to a clerk’s error. After the April 12, 2024 recount, Stevens was leading Gonfiantini by two votes. This is called the “will of the electorate” rule, codified at Wis. Stat. § 5.01(1).

That statute is short enough to quote here. It says, "Except as otherwise provided, chs. 5 to 12 shall be construed to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to fully comply with some of their provisions."

Because Stevens’s margin of victory over Gonfiantini was only two votes, these three defective absentee ballots decided the election.

Argument

I. The requirement that absentee ballots be endorsed by the clerk is mandatory, not directory, and this defect may be challenged at a recount.

The circuit court erred when it decided that the provision of Wisconsin law requiring absentee ballots to be endorsed by the clerk was directory rather than mandatory.

A. A failure of a clerk to endorse an absentee ballot is not a de minimis defect and such ballots therefore should be discarded to prevent the potential for fraud.

The board of canvassers decided Gonfiantini’s challenge to the three defective ballots incorrectly because Wisconsin case law states that, “even under the ‘will of the electorate’ rule votes will be discarded despite the apparent good faith of the electors if noncompliance with the election law is not de minimis.”

B. Under Wisconsin law, parties have an absolute right to challenge absent electors.

The statutes also explicitly state that parties have the right to challenge the vote of an absent elector: “The vote of any absent elector may be challenged for cause and the inspectors of election shall have all the power and authority given them to hear and determine the legality of the ballot the same as if the ballot had been voted in person.”

C. The procedural recount mechanism for squaring the number of ballots with the number of votes does not preclude a later challenge to a defective absentee ballot.

The circuit court found that the procedural mechanism ... for squaring the number of ballots with the number of votes at the outset of the recount insulates all of the unendorsed absentee ballots from challenge. However, the law does not state this. The law states that absentee ballots may be challenged for cause. The law also states that the parties have a right to have their challenges decided, including at a recount.

D. Wisconsin’s rules of statutory interpretation cut against the circuit court’s decision in this matter.

To interpret the statutes in such a way that claims such as this one are dismissed at the motion to dismiss phase without any discovery, without looking at the ballots, and without any attempt whatsoever to determine how this situation came to pass would be an absurd result.

Interpreting the statutes as allowing one candidate to claim victory on the basis of three unendorsed absentee ballots would be an absurd result when the statutes stress over and over the importance of the clerk’s endorsement on the absentee ballots and there is applicable, binding, case law which states that unendorsed absentee ballots are not to be counted.

E. Even if the provision of Wisconsin law requiring absentee ballots to be endorsed is directory rather than mandatory, it should be considered mandatory in this case because in this matter it would change or render doubtful the result of the election.

The circuit court erred by finding that the endorsement requirement was not mandatory under the facts of this case, when it would render doubtful the result of this specific county board supervisor election. Even if the requirement that absentee ballots be endorsed by the clerk is found to be directory, it is still fatal to the three absentee ballots in this case.

II. The circuit court should have set aside the board of canvass’s assumption that the three defective absentee ballots were the result of “clerk’s error” because the board did not make a finding based on substantial evidence.

The circuit court erred when it relied on the board of canvass’s assumption that the three unendorsed ballots were a result of “clerk’s error” because this was not supported by substantial evidence. The circuit court relied on this statement and dismissed the case.

The problem with this ruling is that the board of canvass did not actually make a factual finding based on evidence or give any reasons at all for its statements regarding “clerk error.” Gonfiantini objected to the three defective absentee ballots and the board of canvass simply assumed that it was a “clerks error” without any basis whatsoever. This is clear from the Minutes of the Recount, which simply stated, “Ballots are not drawn down due to a poll worker error” and “Ballots are not drawn down due to a clerk error.” The minutes show that the board did not conduct any investigation and did not make any specific findings of what the clerk error was or even whether there was a clerk error at all.

Brief of appellant

Case no: 2024AP1195

Case name: Sheboygan County v N.A.L.

Court of Appeals District: II

Filing attorney: Will Straube 

Title:  Assistant State Public Defender

Law firm / agency:  Office of the State Public Defender

Circuit Court: Sheboygan County

Judge: Rebecca Persick

Issues presented

N.A.L. appeared by phone at his final hearing. His counsel stated that he would stipulate to commitment, but during the hearing N.A.L. asked what a stipulation was, stated he thought the court hearing was to determine when he would be discharged from Winnebago, and, after the court accepted the stipulation, asked what he had just agreed to.

Did the trial court violate N.A.L.’s due process rights by accepting the stipulation for commitment and issuing an order for involuntary medication without conducting a colloquy to ensure the stipulation was knowing, intelligent, and voluntary?

The trial court answered “no.”

2. Whether this appeal is moot.

The trial court was not asked this question.

Statement of the case and facts

On November 25, 2023, N.A.L. went to Aurora Hospital to seek treatment. N.A.L. told hospital staff that he was hearing voices which told him to harm himself but that he did not want to be voluntarily committed. When N.A.L. attempted to leave the emergency room, N.A.L. was handcuffed to the bed and eventually placed in emergency detention. A probable cause hearing was held on November 29, 2023. N.A.L. did not dispute that probable cause existed and the court found probable cause as well as grounds for a final hearing.

At the final hearing, both N.A.L. and his counsel appeared by phone. N.A.L.’s counsel reported that N.A.L. was willing to stipulate to the county’s request for a civil commitment under Chapter 51. N.A.L. then interrupted to ask, “What’s a stipulation?” The court explained that a stipulation meant that N.A.L. was agreeing that he could be committed. When the court asked N.A.L. if he was indeed agreeing to this, he responded, “I suppose.”

Later in the hearing, N.A.L. asked how long he would have to wait to be discharged from Winnebago. When the court explained that his discharge date would be up to the doctor, N.A.L. responded, “Well, I thought we were evaluating that today on the court date.” The court then asked N.A.L.’s counsel if he wanted a chance to speak to his client but counsel declined the opportunity. Eventually, N.A.L. said he understood that it would be up to the doctors when he would leave Winnebago, but when asked if he was “also agreeing that there can be a commitment order,” he replied, “[o]nly if I’m able to be discharged in the next, you know, agreeable period of time.” The court then said, “it’s unclear to me whether this is an actual stipulation to commitment or not.”

One of the psychiatrists who had examined N.A.L., Dr. Marshall Bales, then spoke up and said that while he didn’t “want to speculate” he estimated that N.A.L. would likely be out of Winnebago in a day or two. N.A.L. said that this estimate helped, and that he was willing to agree to the commitment. However, after the court accepted the stipulation, N.A.L. asked, “[s]o then I’m supposed to be released in a few days of my commitment, or what does this mean?” The court advised N.A.L. to contact his counsel, who had already left the hearing, to find out what he had agreed to. The court did not conduct a colloquy to determine whether the stipulation and its attendant waiver of rights was knowing, intelligent, and voluntary.

On December 7, 2023, the court entered an order of commitment based on the stipulation.

Argument

The trial court erred by failing to conduct a colloquy to ensure that N.A.L.’s stipulation to commitment and attendant waiver of rights was knowing, intelligent, and voluntary.

Personal colloquies are ... required in the context of civil commitments: when a respondent waives the right to counsel in (commitment) the court must conduct a colloquy that meets the same standards imposed in criminal cases. In fact, the importance of an on-the-record showing that the right is being waived knowing, intentionally, and voluntarily has been required since 1991.

This appeal is not moot.

Although N.A.L.’s initial commitment order has expired, this appeal is not moot because of the enduring collateral consequences of the order, namely the resultant firearms ban and the potential liability for the cost of care. “It is now well established under Wisconsin law that an appeal of an expired commitment order — whether an initial commitment order or a recommitment order — is not moot due to continuing collateral consequences of the firearms ban required under a commitment order, as well as liability for the cost of care.”

Under state law, a person may be prohibited from possessing a firearm if the person was involuntarily committed for mental illness, drug dependence, or alcohol dependence under chapter 51 of the Wisconsin state statutes, according to the Wisconsin Legislative Council.