COA issues opinion providing persuasive authority on Sell’s first factor
State v. S.J.S., 2025AP755 & 755, 7/28/26, District III (not recommended for publication); case activity
In this appeal from involuntary medication orders in two cases, COA applies an exception to the mootness doctrine and concludes that the state failed to satisfy the first Sell factor because “Scott” had not been charged with a serious crime, and special circumstances that mitigated the importance of the state’s interest in bringing Scott to trial existed.
The state charged Scott, who was mentally ill and had been repeatedly hospitalized for treatment and competency restoration for nearly two decades, with disorderly conduct and obstructing an officer in one case, and with possession of methamphetamine, disorderly conduct, obstructing an officer, misdemeanor bail jumping and possession of drug paraphernalia in a subsequent case. (¶3). After Scott was found not competent, the circuit court entered orders of commitment and treatment in both cases in July 2024, and Scott was admitted to Mendota for competency treatment four months later, in November 2024. (¶4). The state then moved for involuntary medication in January 2025. (¶5). The court held an evidentiary hearing and concluded that the state had met its burden to prove the Sell factors (¶¶6, 9).
On appeal, the state argues, and Scott concedes, that the orders are moot. (¶¶12-13). However, COA agrees with Scott that multiple exceptions to the mootness doctrine apply–an individual’s significant liberty interest in avoiding forced medication is “of great public importance[,]” and involuntary administration of medication orders under Wis. Stat. § 971.14 “arise[] 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” and there is a lack of significant guidance on how circuit courts are to evaluate the first Sell factor. (¶¶14-15). Also, this is an issue of statewide importance that is likely to evade review due to the appellate timeline. (¶16).
The only Sell factor in dispute is the first, with Scott asserting that the state failed to meet its burden to prove by clear and convincing evidence that it has an important governmental interest in prosecuting him. Under this factor, the circuit court is required to “find that important governmental interests are at stake” which occurs when someone is accused of a “serious crime.” (¶18). However, special circumstances may lessen the importance of the government’s interest in a particular case. (¶19).
Here, in its discussion of the first factor, the circuit court stated that it considered possession of methamphetamine very serious. When defense counsel asked whether the court was considering both cases, the court stated, “Well, isn’t every case a serious offense? Doesn’t the government have an interest in every case that it prosecutes? Otherwise, why is it prosecuting? I mean, just from a philosophical standpoint, right?” (¶20). COA takes issue with this “‘philosophical’ discussion” and holds that it is “abundantly clear” that not all crimes are serious under the first factor, and not all crimes are considered serious just because the state charged them. (¶21).
COA then seemingly explains its decision to author, but not publish this decision:
there are few cases in Wisconsin outlining or even addressing what factors a court should consider when looking at the first Sell factor. Our goal here is not to provide a broad pronouncement regarding what mitigating factors circuit courts must consider. Instead, the factors that we discuss below are those that we consider relevant and appropriate for consideration under the facts of these particular cases, with the intent that circuit courts may find this discussion persuasive for future determinations under the first Sell factor.
(¶23). In a footnote to this paragraph, COA notes that a petition for review of its decision in B.M.T., which it views as a “much closer case,” is currently pending, and urges the supreme court to accept that petition.
COA then cites B.M.T., which holds “that the totality of the alleged criminal conduct may be considered when determining whether the State has an important interest in bringing a defendant to trial” and “the extent of the defendant’s criminal exposure—in nature, scope, and penalty—informs the government’s interest in bringing the defendant to trial.” (¶24). Over Scott’s urging, COA declines to adopt a “framework” to determine whether a crime is serious.(¶27). Instead, it considers the facts of the charges as outlined in the criminal complaint, and determines that the crimes are not serious. (¶¶28-30).
Further, COA does not consider the potential penalty of 1.5 years of initial confinement on the sole felony and between 30 days and 9 months on each of the misdemeanors, adding up to 3 years and 2 months, whether individually or collectively, to be significant enough to override Scott’s liberty interest against forced medication. (¶31). In addition, the state’s interest in prosecuting Scott is mitigated by his lengthy pretrial confinement as well as the nonviolent nature of his alleged crimes and his mental health history and condition. (¶33).
As to the state’s specific arguments related to the seriousness of a possession of meth charge, COA offers a nuanced analysis:
¶38 Considering the individual facts here, Scott’s use of methamphetamine is itself the result of a longstanding delusion caused by his mental illness, such that he believes he is appropriately medicating himself. Therefore, the societal impact of addiction and methamphetamine use generally are not necessarily appropriate considerations in an individualized analysis where, as here, the addiction is due to mental illness and is specifically a result of the individual’s delusions; where Scott is not accused of distributing the drugs to others; and where there is little adverse impact of the methamphetamine use on others—or, in other words, arguably the impact is indistinguishable from the impact of the mental illness itself—under the circumstances as they exist here.
Although not relevant to the holding here, it could also be worth noting that COA rejects Scott’s argument that a high likelihood of a future ch. 51 commitment also undermines the state’s interest, given Scott’s history of incompetency in criminal cases and his assessment that he met the requirements for a ch. 51 commitment, as it finds the argument to be speculative. “While a future ch. 51 commitment may be a proper factor to consider when evaluating the governmental interest in prosecuting a defendant, in these cases it does not mitigate the State’s interest” because “no ch. 51 commitment proceedings had commenced for Scott at the time of the circuit court’s orders in these cases and . . . Scott had never been found dangerous or committed under ch. 51 in the past.” (¶38 n.11).
COA concludes that Scott has not been charged here with serious crimes under Sell and that “the combination of special circumstances—such as Scott’s significant pretrial confinement, the nonviolent nature of Scott’s charges, and the relation of Scott’s mental health to his crimes—also has a mitigating effect that serves to eliminate the State’s important interest in prosecuting Scott for his crimes.” (¶39). Therefore, it reverses the circuit court’s involuntary medication orders.