C. THE MEDICATION ORDERS THE STATE PROPOSES WOULD UNDERMINE
CHAPTER 51'S SAFEGUARDS AND COMPROMISE LIBERTY. ¶34 The involuntary administration of psychotropic medication implicates a "significant liberty interest." Washington v. Harper, 494 U.S. 210, 221 (1990). The State may override that liberty interest only in limited circumstances and only with appropriate safeguards. If the State seeks that the individual is not competent to refuse
medication or treatment, based on an examination of
the individual by a licensed physician. The hearing
under this subdivision shall meet the requirements of
s. 51.20 (5), except for the right to a jury trial. At the request of the subject individual, the individual's
counsel or applicable counsel under s. 51.20 (4), the
hearing may be postponed, but in no case may the
postponed hearing be held more than 20 days after a
motion is filed.
24
JUSTICE REBECCA GRASSL BRADLEY, concurring
15
forcible medication to restore a criminal defendant's trial competency, courts must apply the four-factor framework announced in Sell v. United States. 539 U.S. 166, 180-81 (2003) (requiring findings that (1) important governmental interests at stake; (2) "involuntary medication will significantly further those concomitant state interests"; (3) "involuntary medication is necessary to further those interests"; and (4) "administration of the drugs is medically appropriate"). If, on the other hand, the State seeks forced medication in response to dangerousness or based on medical necessity, the law permits medical professionals, acting in conformity with procedural safeguards, to administer such medication without running afoul of the Due Process Clause. Harper, 494 U.S. at 227, 231 ("[T]he Constitution does not prohibit the State from permitting medical personnel to make the decision under fair procedural mechanisms.") (citations omitted).
¶35 Involuntary medication to restore trial competency, and involuntary medication to maintain safety, involve distinct government interests and different procedures mandated by the Constitution (per Sell and Harper), and by the Wisconsin Statutes (under chs. 971 and 51). This court recognizes and applies those governing constitutional constraints. See State v. Fitzgerald, 2019 WI 69, ¶¶13-18, 387 Wis. 2d 384, 929 N.W.2d 165. Wisconsin statutes reflect the differences among the procedures to be followed when the government seeks the involuntary administration of medication to restore trial competency versus mitigating an individual's dangerousness. WISCONSIN STAT. § 971.14 outlines the framework for involuntary medication to restore trial competency, while ch. 51 governs the commitment of subjects for dangerousness, under WIS. STAT. § 51.20(1)(a)2.a.-e. After commitment, ch. 51 authorizes a committing court to order involuntary medication of a ch. 51 committee who has already been found dangerous. Even then, WIS. STAT. § 51.61(1)(g)3. requires the court to find the committee incompetent to refuse it. Chapter 51 otherwise permits only doctors to make administrative findings of dangerousness where medication is "necessary to prevent serious physical harm to the individual or others," under WIS. STAT. § 51.61(1)(g)-(h).8Reading § 971.14 to authorize court-ordered
25
JUSTICE REBECCA GRASSL BRADLEY, concurring
16
medication based on a defendant's dangerousness would conflate two constitutionally and statutorily distinct schemes. ¶36 Reflecting the legislature's deliberate balance between public safety and the individual's liberty interest in refusing unwanted treatment, ch. 51 contains five statutory definitions of dangerousness, each tied to specific conduct, recency requirements, and evidentiary standards. See WIS. STAT. § 51.20(1)(a)2.a.-e. It also prescribes procedural safeguards, including timely probable cause and final hearings, the right to counsel, the right to present and cross-examine witnesses, advance access to medical reports, the right to choose an open or closed hearing, and judicial findings meeting statutory criteria—all before a subject may be committed and involuntary medication may be ordered. WIS. STAT. §§ 51.20(3), (5), (7), (9), (10), (13)(dm); 51.61(1)(g). The patients' rights provision set forth in WIS. STAT. § 51.61, does not offer an end run around a dangerousness finding mandated by § 51.20(1)(a)2.a.-e., the prerequisite to a ch. 51
. . .
(h) Have a right to be free from unnecessary or excessive medication at any time. No medication may be administered to a patient except at the written order of a physician. The attending physician is responsible for all medication which is administered to a patient. A record of the medication which is administered to each patient shall be kept in his or her medical records. Medication may not be used as punishment, for the convenience of staff, as a substitute for a treatment program, or in quantities that interfere with a patient's treatment program. Except when medication or medical treatment has been ordered by the court under par. (g) or is necessary to prevent serious physical harm to others as evidenced by a recent overt act, attempt or threat to do such harm, a patient may refuse medications and medical treatment if the patient is a member of a recognized religious organization and the religious tenets of such organization prohibit such medications and treatment. The individual shall be informed of this right prior to administration of medications or treatment whenever the patient's condition so permits.
26
JUSTICE REBECCA GRASSL BRADLEY, concurring
17
commitment and court-ordered involuntary administration of medication. WISCONSIN STAT. § 51.61(1)(h) grants doctors the authority to medicate to prevent serious physical harm to the individual or others, but only if
"necessary," see § 51.61(1)(g)1., 3., and ultimately subject to administrative review. See WIS. STAT. § 51.61(5)-(7m).
¶37 WISCONSIN STAT. § 51.61(1)(g)3. preserves a patient's right to refuse medication following a final commitment unless one of two exceptions applies. Winnebago Cnty. v. C.S., 2020 WI 33, ¶18, 391 Wis. 2d 35, 940 N.W.2d 875. The first clause of § 51.61(1)(g)3. authorizes a court, "following a hearing," to determine that an individual is not competent to refuse medication. The first exception, the court explained in C.S., "is not linked to dangerousness." Id., ¶28. The second clause overcomes the patient's right to refuse medication if "a situation exists in which the medication or treatment is necessary to prevent serious physical harm to the individual or others." Id., ¶18.
¶38 The use of "unless" in WIS. STAT. § 51.61(1)(g)3. preceding each exception, together with the disjunctive "or" separating each exception, signals two independent exceptions, with courts controlling only the first exception. See SCALIA & GARNER, supra, at 116-25 (discussing the disjunctive "or"). Under the first exception, a court may order medication after a hearing and a finding of incompetence to refuse medication. The second exception says nothing about a court, a hearing, or any judicial determination. Reading the second exception to give a committing court an additional factual predicate for medication would rewrite the statute.
¶39 The structural and grammatical differences between the two clauses confirm their independent operation. The first exception is explicitly judicial; it references "the committing court" and a "hearing."
See WIS. STAT. § 51.61(1)(g)3. The legislature drafted the second exception in the passive voice, omitting a decisionmaker. Id. That omission does not license the judiciary to make itself the decisionmaker. The very next section, WIS. STAT. § 51.61(1)(h), offers a textual clue regarding the identity of the decision-maker: "No medication may be administered to a patient except at the written order of a physician." The statute's structure comports with its grammar: one exception requires a court hearing to determine an individual's competence to refuse medication (after a WIS. STAT. § 51.20 dangerousness commitment, among others); the other concerns emergency circumstances requiring immediate medical intervention without first seeking judicial approval.
27
JUSTICE REBECCA GRASSL BRADLEY, concurring
18
¶40 WISCONSIN STAT. § 51.61(1)(h) reinforces this distinction. Under that section, a patient may refuse medication on religious grounds except when medication "has been ordered by the court under par. (g) or is necessary to prevent serious physical harm." As in WIS. STAT. § 51.61(1)(g)3., these are two separate circumstances, with different decisionmakers. If courts could make necessity findings under the second clause of § 51.61(1)(g)3., the second clause in § 51.61(1)(h) would be redundant. The legislature's choice to repeat the necessity language beyond para. (g) confirms the administration of involuntary medication on an emergency basis is distinct from court-ordered medication based on incompetency. See SCALIA & GARNER, supra, at 174-79 (discussing the surplusage canon).
¶41 WISCONSIN STAT. § 51.61(1)(g)3. provides two separate factual predicates for overriding a patient's refusal of medication, two different decisionmakers, and two different procedural tracks. The first operates through structured judicial proceedings. The second operates through physicians' emergency authority, subject to review. The State's reading collapses these distinct avenues into an overriding judicial power untethered to the procedural protections of ch. 51. The text does not support the State's reading.
1. The First Exception to WIS. STAT. § 51.61(1)(g)3.: Courts ¶42 The first exception in WISCONSIN STAT. § 51.61(1)(g)3. permits the involuntary administration of medication, post-commitment, after "a determination, following a hearing, that the individual is not competent to refuse medication." WIS. STAT. § 51.61(1)(g)3. Under that exception, psychotropic medication may be administered despite the patient's objection only if a court finds probable cause to believe the patient is incompetent to refuse. Section 51.61(1)(g)3. does not itself establish hearing procedures; instead, it incorporates them by reference. Following a final commitment order, the committing court must hold a hearing meeting the requirements of WIS. STAT. § 51.20(5) and find the committee
"not competent to refuse medication." See WIS. STAT. § 51.61(1)(g)3. ("The hearing under this subdivision shall meet the requirements of s. 51.20 (5), except for the right to a jury trial."); see also WIS. STAT. § 51.20(5) (requiring
"due process," "fair treatment," "the right to counsel," confrontation rights, the right to remain silent, and other rights). That hearing serves as a constitutional and statutory gatekeeper before a court may pierce a patient's right to refuse medication.
28
JUSTICE REBECCA GRASSL BRADLEY, concurring
19
¶43 Nothing in the statutes permits a committing court under ch. 971 to use a physician's determination that the patient "needs medication or treatment" under WIS. STAT. § 51.61(1)(g)3. as a basis for ordering medication to ameliorate a defendant's dangerousness. WISCONSIN STAT. § 971.14(2)(f) provides, "[t]he 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." Under that statute, physicians control the determination of necessity. Section 971.14(2)(f) gives doctors conducting trial competency examinations only limited authority to medicate before commitment. In contrast, WIS. STAT. § 51.61(1)(g)3. applies only "[f]ollowing a final commitment order." For this reason alone, WIS. STAT. § 971.14(2)(f) cannot be incorporated into WIS. STAT. § 51.61(1)(g)3. The first exception to patients' rights in § 51.61(1)(g)3. does not grant a ch. 971 committing court the authority to order medication based on dangerousness.
2. The Second Exception to WIS. STAT. § 51.61(1)(g)3.: Physicians ¶44 Under the second exception, WIS. STAT. § 51.61(1)(g)3. permits medication despite the patient's objection "in a situation within the hospital setting" if emergency treatment "is necessary to prevent serious physical harm to the patient or to others." State ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 737, 416 N.W.2d 883 (1987). This clause does not mention a court, a hearing, or a judicial determination. The identity of the decisionmaker is supplied immediately afterward. Paragraph (h) provides, "[n]o medication may be administered to a patient except at the written order of a physician," and the attending physician is responsible for all medication administered. WIS. STAT. § 51.61(1)(h). Physicians, not courts, make these decisions in real time, and are subject to administrative grievance procedures and judicial review under § 51.61(5)-(7m). ¶45 Reading the second exception in WIS. STAT. § 51.61(1)(g)3. as falling under the judicial power would render WIS. STAT. § 51.61(1)(h) superfluous and conflate two distinct statutory pathways: structured judicial findings of incompetency in the first exception, and physician- ordered emergency intervention in the second exception. That distinction plainly appears in the text and structure of § 51.61, and reflects the legislature's balancing of individual liberty with urgent medical and safety needs.
29
JUSTICE REBECCA GRASSL BRADLEY, concurring
20
¶46 The medical necessity clause of WIS. STAT. § 51.61(1)(g)3. must also be read in pari materia with other necessity exceptions in chs. 51 and 971. State v. Harrison, 2020 WI 35, ¶35, 391 Wis. 2d 161, 942 N.W.2d 310 (citing SCALIA & GARNER, supra, at 252 ("Statutes in pari materia are to be interpreted together, as though they were one law.")). The statutes authorize physicians to administer medication if "necessary to prevent serious physical harm" in at least three provisions in addition to § 51.61(1)(g)3., including WIS. STAT. § 51.61(1)(g)1.; WIS. STAT. § 51.61(1)(h); and WIS. STAT. § 971.14(2)(f).
¶47 All exceptions to patients' rights are written consistently with WIS. STAT. § 51.61(1)(g)3.—in the passive voice, and separated by a disjunctive "or" to distinguish between the two avenues for overriding a patient's right to refuse medication: (1) as ordered by a court after a hearing or (2) as ordered by a physician "to prevent serious physical harm" to the patient or others:
WIS. STAT. § 51.61(1)(g)1.: "[E]ach patient shall . . . [h]ave the right to refuse all medication and treatment except as
ordered by the court under subd. 2., or in a situation in which the medication or treatment is necessary to prevent serious physical harm to the patient or to others." (emphasis added).
WIS. STAT. § 51.61(1)(g)3.: "[E]ach patient shall . . . have the right to exercise informed consent with regard to all
medication and treatment unless the committing court or the court in the county in which the individual is
located . . . makes a determination, following a hearing, that the individual is not competent to refuse medication or
treatment or unless a situation exists in which the medication or treatment is necessary to prevent serious physical harm to the individual or others." (emphasis added).
WIS. STAT. § 51.61(1)(h): "Except when medication or medical treatment has been ordered by the court under par. (g) or is necessary to prevent serious physical harm to others as
evidenced by a recent overt act, attempt or threat to do such harm, a patient may refuse medications and medical
treatment if the patient is a member of a recognized religious organization . . . ." (emphasis added).
30
JUSTICE REBECCA GRASSL BRADLEY, concurring
21
If a patient's condition risks "serious physical harm" to the patient or others, doctors determine the necessity of medication without a court order, unless a court has already ordered medication. See WIS. STAT. § 51.61(1)(h) ("No medication may be administered to a patient except at the written order of a physician. The attending physician is responsible for all medication which is administered to a patient."). ¶48 WISCONSIN STAT. § 971.14(2) provides for physician- conducted examinations prior to competency hearings. While examining a defendant for trial competency, a physician may provide the defendant with "voluntary treatment appropriate to his or her medical needs." WIS. STAT. § 971.14(2)(f). "The 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." Id. This exception again authorizes physicians to administer medication without a court order.
¶49 Where the legislature requires a court to deem involuntary medication "necessary," the statutory text does so expressly. E.g., WIS. STAT. § 971.17(5).9Under chapter 971, if a person on conditional release
31
JUSTICE REBECCA GRASSL BRADLEY, concurring
22
who has been "found not guilty by reason of mental disease or defect"
wishes to terminate his commitment, he may petition the court. Id. After a hearing, "[t]he court shall terminate the order of commitment unless it finds by clear and convincing evidence that further supervision is necessary to prevent a significant risk of bodily harm to the person or to others or of serious property damage." Id. Nothing in ch. 971 authorizes a court to order the involuntary administration of medication based on an individual's "dangerousness"; only ch. 51 gives courts that authority, and only after an individual has been committed—under ch. 51.
D. CHAPTER 51 ALREADY PROVIDES A COMPLETE DANGEROUSNESS PATH TO
INVOLUNTARY MEDICATION, RENDERING THE STATE'S § 971.14 READING
REDUNDANT.
¶50 Section 971.14's silence is dispositive. Chapter 51 occupies the field of dangerousness-based court-ordered intervention. The legislature did not leave a gap for courts to fill. The State and circuit court created one with a misplaced motion and a hearing nowhere mentioned in the Wisconsin Statutes. Chapter 51 applies broadly to individuals who are detained, committed, or in custody, including those whose confinement arises from criminal proceedings. See WIS. STAT. §§ 51.20, 51.61. It defines dangerousness, prescribes the governing procedures, assigns responsibility between courts and medical professionals, and provides review mechanisms.
¶51 By contrast, WIS. STAT. § 971.14 serves a distinct and narrower purpose: restoring trial competency. Its structure, procedures, and treatment provisions are tied exclusively to that objective. Recognizing a post-commitment dangerousness pathway under § 971.14 would not fill a statutory gap; it would create a duplicative and procedurally unmoored alternative to ch. 51's carefully constructed framework.
condition, the person's behavior while on conditional release, and plans for the person's living arrangements, support, treatment and other required services after termination of the commitment order. A petition under this subsection may not be filed unless at least 6 months have elapsed since the person was last placed on conditional release or since the most recent petition under this subsection was denied.
32
JUSTICE REBECCA GRASSL BRADLEY, concurring
23
¶52 Statutes should be read harmoniously, not to create overlapping and inconsistent systems. See Kalal, 271 Wis. 2d 633, ¶46. The State's reading would violate that principle, allowing courts to bypass ch. 51's procedures and safeguards governing determinations of dangerousness through a parallel pathway. The canon against surplusage counsels against inferring such redundancy because the legislature has already spoken comprehensively. See SCALIA & GARNER, supra, at 174-79. ¶53 The text of the Wisconsin Statutes resolves Naomi's appeal, with no need to consult statutory history or apply Anthony D.B.. Nothing in the law authorizes a WIS. STAT. § 971.14 committing court to invent a hearing for the purpose of medicating a defendant to ameliorate her dangerousness. Because the majority's analysis strays beyond the statutory text, I concur in the judgment.
33
JUSTICE ZIEGLER, dissenting ANNETTE KINGSLAND ZIEGLER, J., dissenting. ¶54 Justice is blind, but it should not turn a blind eye to the obvious. Naomi is not competent to proceed, in a criminal proceeding, and is irrefutably dangerous.1Naomi is charged with felony battery by a prisoner,2and the case is at a standstill until she regains competency. When a defendant is incompetent, it is the criminal court judge who, by statute, commits the defendant for treatment to regain competency. As a part of that effort to restore competency, the judge may also order the involuntary administration of medication. But the majority concludes that because Naomi's dangerousness was considered by the criminal court in ordering involuntary medication, that order is void. Not that Naomi cannot be involuntarily medicated, the majority says, but any such administration, which is part and parcel of returning her to competency and protecting those confined around her, can only be done by a doctor (without a court order) or ordered as part of a WIS. STAT. chapter 51-dual proceeding.3
34
JUSTICE ZIEGLER, dissenting
2
¶55 The majority concludes that the criminal court cannot consider the dangerousness of a criminal defendant in an involuntary medication order, even though that defendant may reside in a local jail, prison, or institution where, not only returning the defendant to competency is important, but so too is the well-being of others. The majority nonetheless concludes that if the court considers the defendant's dangerousness to be relevant in an involuntary medication order, then a chapter 51 proceeding must be commenced. However, a chapter 51 civil proceeding differs significantly from a chapter 971 restoration of competency in a criminal matter. It is a separate case with different state actors and time limits, distinctive statutory conditions and proceedings, separate purposes and limitations, new lawyers, no victim rights obligations and, likely, a different judge. The apparent incompatibility between chapter 51 and chapter 971 undermines the purpose of expeditiously restoring competency in a criminal case and is likely unworkable in practice. Because the chapter 971 statutes clearly contemplate that the criminal court oversees returning a defendant to competency, and those statutes provide for court-ordered involuntary medication, I would not hamstring the criminal court judge from considering the dangerousness of the defendant who needs treatment, nor would I require a separate chapter 51 proceeding. I would not relegate the decision to regularly administer involuntary medication to medical professionals, who should only be administering involuntary medication in an emergency situation. In short, the criminal court judge should not be precluded from considering what best assists the restoration of competency or whether the defendant is dangerous, and chapter 971 contains no such prohibition.
¶56 Quite obviously, a criminal matter might involve a person who presents as dangerous and that person's liberty interests have been impacted by the criminal process. When that person is incompetent, a judge needs to attempt to restore the competency to proceed. Sometimes that involves the involuntary administration of medication for a person who is dangerous. Undoubtedly, a criminal defendant is free to refuse unwanted administration of antipsychotic medication, even while imprisoned. Washington v. Harper, 494 U.S. 210, 221-22 (1990). But that right is not absolute. Id. at 236. The dangerousness of a defendant must be a practical consideration in determining how best to proceed. When a defendant is incompetent to stand trial, the statutes endow the criminal court judge with the authority to order involuntarily medication, and considering a defendant's dangerousness should not be off limits. Because I disagree with the majority's analysis, I respectfully dissent.
35
JUSTICE ZIEGLER, dissenting
3
I. STATUTORY INTERPRETATION
¶57 Statutory interpretation "begins with the language of the statute." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43,
236 Wis. 2d 211, 612 N.W.2d 659). That is because the legislature's intent is evidenced by the plain meaning of the statutes. Id., ¶43. Context matters. Id., ¶46. Since words connote different meanings based on how they are used, we also consider the statute's context and structure since both are
"important to meaning." Id. "Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id. We read the statute's language "where possible to give reasonable effect to every word, in order to avoid surplusage." Id. Therefore, a host of canons guide our interpretation.
¶58 We begin with the text. Wisconsin's Mental Health Act— specifically, WIS. STAT. § 51.61(1)(g)3.—states that patients [f]ollowing a final commitment order, other than for a subject individual who is determined to meet the
commitment standard under s. 51.20(1)(a)2.e., have the right to exercise informed consent with regard to all medication and treatment unless the committing court or the court in the county in which the individual is located, within 10 days after the filing of the motion of any interested person and with notice of the motion to the individual's counsel, if any, the individual and the applicable counsel under s. 51.20(4), makes a determination, following a hearing, that the individual is not competent to refuse medication or
treatment or unless a situation exists in which the
medication or treatment is necessary to prevent serious physical harm to the individual or others.
WIS. STAT. § 51.61(1)(g)3. Citizens reading this statute would understand that the statute authorizes courts committing a defendant for competency under WIS. STAT. § 971.14 to order involuntary medication to address a defendant's dangerousness at an institution. See JOSEPH RAZ, INTENTION IN
INTERPRETATION, IN THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM
249, 268 (Robert P. George ed., 1996) (explaining that statutes are written
36
JUSTICE ZIEGLER, dissenting
4
for ordinary citizens to understand them). A cursory reading of the statute's plain language could resolve this case. ¶59 But merely reading the statute may be insufficient for a plain-meaning analysis. Kalal's statutory interpretation methodology includes several canons of construction that explain the text's semantics using basic rules of English. For example, the Whole-Text canon requires us to determine the plain meaning of a statute's text considering the language of the entire statute—not just isolated portions. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 167 (2012); see also Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶10,
232 Wis. 2d 587, 605 N.W.2d 515 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987)) ("While it is true that statutory interpretation begins with the language of the statute, it is also well established that courts must not look at a single, isolated sentence or portion of a sentence, but at the role of the relevant language in the entire statute."). When we interpret statutes "in relation to the language of surrounding or closely-related statutes," we find that the statutes as a whole do not require what the majority commands. Kalal, 271 Wis. 2d 633, ¶46.
¶60 Similarly, the Related-Statutes canon provides that "laws dealing with the same subject—being in pari materia (translated as 'in a like matter')—should if possible be interpreted harmoniously." SCALIA & GARNER, supra, at 252. As this court has repeatedly recognized, "[w]hen construing several statutes that deal with the same subject, it is our duty to give each provision full force and effect." State v. Anthony D.B., 2000 WI 94, ¶11, 237 Wis. 2d 1, 614 N.W.2d 435; see State v. Reyes Fuerte, 2017 WI 104, ¶29, 378 Wis. 2d 504, 904 N.W.2d 773 ("Where multiple statutes are at issue, this court seeks to harmonize them through a reasonable construction that gives effect to all provisions."). Only when there is an unavoidable "conflict between statutes" does the more specific provision control. Reyes Fuerte, 378 Wis. 2d 504, ¶29; see Anthony D.B., 237 Wis. 2d 1, ¶11; SCALIA & GARNER, supra, at 180, 183. Applying this canon reveals that similar cases involving incompetence have authorized courts to involuntarily medicate incompetent patients after they have been found dangerous. For example, Anthony D.B. held that WIS. STAT. § 51.61(1)(g)3. authorized a WIS. STAT. ch. 980 court to order involuntary medication to address dangerousness. 237 Wis. 2d 1, ¶¶11, 26. The majority fails to persuasively explain its departure from precedent.
¶61 Moreover, the Presumption Against Ineffectiveness canon favors "interpretation[s] that further[] rather than obstruct[] the
37
JUSTICE ZIEGLER, dissenting
5
document's purpose." SCALIA & GARNER, supra, at 63. "This canon follows inevitably from the facts that (1) interpretation always depends on context, (2) context always includes evident purpose, and (3) evident purpose always includes effectiveness." Id. Here, too, the majority's interpretation fails. The statute is written to allow circuit court judges to determine the need and methods to restore an individual to competency. It grants the court two pathways: (1) The court could order the defendant to undergo a hearing to ascertain the defendant's need for restoration and make a judgment; or (2) it could find that a dangerous situation exists demanding the need to administer medication and treatment involuntarily. Either way, the court acts within its power. Preventing the court from acting under its statutorily granted authority "contravenes the manifest purpose of the statute" making that interpretation
"unreasonable." State v. Dinkins, 2012 WI 24, ¶29, 339 Wis. 2d 78, 810 N.W.2d 787. Interpretations that produce absurd results are at odds with the legislature's intent. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring in the judgment). They are disfavored. ¶62 These methods reveal the meaning of a statute. If, by employing these methods, the plain meaning of the statute is clear, then we may not "disregard the plain, clear words of the statute." Kalal, 271 Wis. 2d 633, ¶46 (citation omitted). Accordingly, our analysis begins with the pertinent sections of the statutes. Then, we utilize our canons of construction to ascertain the statutes' plain meaning which, here, allows a criminal court to consider dangerousness when ordering involuntary medication to restore a defendant to competency. The statutes do not preclude that consideration.
II. DISCUSSION
¶63 WISCONSIN STAT. § 971.14 directs a criminal court when competency has become an issue and works conjunctively with chapter
51. Chapter 51 of the Wisconsin Statutes is Wisconsin's State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act. WISCONSIN STAT. § 51.61 is entitled, "Patients Rights." Section 51.61 applies to § 971.14 committees. See WIS. STAT. § 51.61(1) (defining "patient" as
"any individual who is receiving services for mental illness . . . including any individual who is . . . detained, committed or placed under this chapter or ch. . . . 971.").
¶64 WISCONSIN STAT. § 51.61(1) enumerates certain rights that all patients have. Specifically, patients have the "right to be informed of
38
JUSTICE ZIEGLER, dissenting
6
[their] treatment and care and to participate in the planning of [their] treatment and care." WIS. STAT. § 51.61(1)(fm). Patients may also refuse medication "except as ordered by the court under [§ 51.61(1)(g)2.], or in a situation in which the medication or treatment is necessary to prevent serious physical harm to the patient or to others," while they are committed under WIS. STAT. ch. 971. § 51.61(1)(g)1. (emphasis added). Patients may also refuse medication
[f]ollowing a commitment order . . . unless the committing court . . . makes a determination, following a hearing, that the individual is not competent to refuse medication or treatment or unless a situation exists in which the medication or treatment is necessary to prevent serious physical harm to the individual or others."
§ 51.61(1)(g)3. (emphasis added). Both of these subdivisions of § 51.61(1)(g) explicitly carve out exceptions to a patient's right to refuse medication when it "is necessary to prevent serious physical harm" to the patient/individual or to others. WIS. STAT. § 971.14; § 51.61(1)(g)1., 3. In other words, the individual may be medicated against their refusal when they are dangerous.
¶65 Section 971.14 cannot be considered in a vacuum. It must be interpreted in light of the statutory scheme and whole text, the entirety of the related statutes, and presumed to give each statutory section its full force and effect. Kalal, 271 Wis. 2d 633, ¶46. Naomi's interpretation does none of these things. Instead, she concedes that some provisions of § 971.14 apply to her, but that other provisions do not. Conveniently, it is the dangerousness reference that she says is no longer applicable. Without this parsing of the statute, however, her argument fails. Without legislative direction deeming this subsection inapplicable, we should be wary of her interpretation.
¶66 The United States Supreme Court has determined that addressing an individual's dangerousness in an institution may override an individual's liberty interest in refusing medication. Harper, 494 U.S. at 221−27. Importantly, the Court has instructed trial courts to consider whether an individual's involuntary medication can be justified on dangerousness grounds before considering Sell's return-to-competency standards. Sell v. United States, 539 U.S. 166, 181−83 (2003).
39
JUSTICE ZIEGLER, dissenting
7
¶67 In this case, WIS. STAT. § 51.61(1)(g)3.'s provisions explicitly apply to individuals committed under WIS. STAT. ch. 971. See § 51.61(1). Together, the two statutes allow the court to order involuntary medication for different reasons. On one hand, WIS. STAT. § 971.14 includes involuntary medication provisions to help restore a committee's trial competency. On the other hand, § 51.61(1)(g) addresses involuntary medication for dangerousness in an institution.
¶68 Moreover, WIS. STAT. §§ 971.14 and 51.61 are closely related. Section 51.61 explicitly references chapter 971, and a chapter 971 committing court considers the defendant as a patient endowed with all of the rights and protections provided under § 51.61. See Reyes Fuerte, 378 Wis. 2d 504, ¶27 (indicating that statutes are closely related when one references another); Anthony D.B., 237 Wis. 2d 1, ¶11 (treating chapters 980 and 51 as closely related because they "both govern individuals committed as sexually violent persons"). In other words, both § 51.61 and § 971.14 govern criminal defendants who need to be returned to competency.
¶69 And, these sections do not conflict. Rather, they work conjointly. Tools of statutory construction encourage us to look for a harmonious reading of these statutes. Eau Claire Cnty. DHS v. S.E., 2021 WI 56, ¶30, 397 Wis. 2d 462, 960 N.W.2d 391. A harmonious reading demonstrates that the legislature considered that WIS. STAT. § 971.14 committing courts would need to involuntarily medicate a dangerous committee. Nowhere does the text indicate that a second commitment under chapter 51 is needed. If it did, Anthony D.B. would need to be overturned, which the majority is not doing. This interpretation should be favored to give the plain meaning of both statutes their "full force and effect." Anthony D.B., 237 Wis. 2d 1, ¶11.
¶70 Stated differently, the text makes it clear that WIS. STAT. § 51.61(1)(g)3. authorizes WIS. STAT. § 971.14 courts to issue involuntary medication orders for a committee who is dangerous. Under § 51.61, chapter 971 committees are patients. Patients may refuse medication or treatment "unless the committing court . . . makes a determination, following a hearing, that the individual is not competent to refuse medication or treatment or unless a situation exists in which the medication or treatment is necessary to prevent serious physical harm to the individual or others." § 51.61(1)(g)3. (emphasis added). Because Naomi, as a § 971.14 committee, is a "patient" under § 51.61(1)(g)3., the "specific procedures for involuntary medication" set forth under § 51.61(1)(g)3. apply to her. And,
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under § 51.61(1)(g)3., when a physician determines that the patient "needs medication or treatment and that the individual is not competent to refuse medication or treatment," the chapter 971 court must address the "needs of the patient," which can include medication for dangerousness. Anthony D.B., 237 Wis. 2d 1, ¶¶13-15. The "needs" of a § 971.14 committee/patient may include an involuntary medication order, which, as we know, the legislature provided for at a very early stage in the § 971.14 proceeding based on the text which states that "[t]he 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).
¶71 Employing our Kalal-required canons bolsters a conclusion contrary to that of the majority. Simply stated, the language of the statutes cross-reference and incorporate each other. When read as authorizing the committing court to involuntarily medicate a patient at different stages in the proceeding, the statutes work harmoniously. There is simply no indication that the legislature exacted out one portion of a specifically included subsection of a statute to require dual proceedings and tie the hands of the criminal court. Considering that both statutes govern incompetent individuals, WIS. STAT. § 971.14 is closely related to WIS. STAT. § 51.61. See Reyes Fuerte, 378 Wis. 2d 504, ¶27; Anthony D.B., 237 Wis. 2d 1, ¶11. When viewed through that lens, the legislature allowed chapter 971 committing courts to order involuntary medication to address dangerousness. And, that also makes sense. Instead of pausing the criminal case and waiting for who knows how long for a separate chapter 51 case to begin and end, the legislature provided for the criminal court to be able to restore a defendant's competency and address the dangerousness of a defendant who likely is also housed with other people who deserve to not be subjected to the committee's dangerousness. Harmonizing the provisions, rather than inviting unnecessary conflict, is a sound method of statutory construction and militates in favor of allowing involuntary medication under the plain meaning.
¶72 This plain-meaning analysis is supported by Anthony D.B. In Anthony D.B., a criminal defendant was "committed as a sexually violent person" under WIS. STAT. ch. 980 (1995-96). Anthony D.B., 237 Wis. 2d 1, ¶2. The committee was previously convicted of sexual assault,
"committed under WIS. STAT. § 971.17," and adjudicated "not competent to refuse medication." Id. The committee's treating physician testified that the committee "suffered from a mental disease and was dangerous when not medicated" and "that involuntary medication was necessary to protect
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Anthony D.B. from himself, and to protect others from him." Id., ¶4. Rather than requiring the state "to initiate commitment proceedings under WIS. STAT. ch. 51 before seeking an order for involuntary medication," we held that that "[t]he underlying purpose for civil commitment, including commitment under WIS. STAT. ch. 980, 'is to treat the individual's mental illness and protect him and society from his potential dangerousness.'" Id., ¶¶5, 10, 12 (quoting State v. Post, 197 Wis. 2d 279, 308, 541 N.W.2d 115 (1995)). We concluded that "[t]he legislature has provided that these individuals are to have the statutory rights under WIS. STAT. § 51.61, pursuant to the inclusion of individuals committed under WIS. STAT. ch. 980 in § 51.61(1)." Id., ¶15. Accordingly, "the rights extended to patients civilly committed under ch. 51 were extended to patients who are criminally committed." Id., ¶17. And "the procedures in WIS. STAT. § 51.61 apply unless and until the legislature provides alternative provisions." Id., ¶20.
¶73 As with Naomi's case, the answer is found by reading WIS. STAT. ch. 971 alongside WIS. STAT. § 51.61. See id., ¶24 (reading "WIS. STAT. ch. 980 together with § 51.61"). The reference to chapter 971 in § 51.61— like the reference to chapter 980 in § 51.61—endows the court with the right to issue an involuntary medication order for dangerousness. Id., ¶15; see also State v. Jeremiah C., 2003 WI App 40, ¶17, 260 Wis. 2d 359, 659 N.W.2d 193 (explaining that the Related-Statutes canon "refers to statutes and regulations relating to the same subject matter or having a common purpose" and that "[t]he statutory construction doctrine of in pari materia requires a court to read, apply and construe statutes relating to the same subject matter together"). Because we have already interpreted the propriety of involuntary medication orders after a finding of dangerousness in § 51.61 in similar contexts, the same conclusion should apply here.
¶74 Just like in Anthony D.B., the Department of Health Services sought an involuntary medication order to address Naomi's dangerousness. Like in Anthony D.B., Naomi's doctor testified that she needed medication because she was dangerous to herself and others. The committing court found that Naomi was dangerous and incompetent to refuse medication. Then, the court ordered her to be involuntarily medicated, exactly as the defendant in Anthony D.B. Thus, the statutory interpretation arguments she makes have been conclusively decided in Anthony D.B., and at a minimum, that precedent undercuts the conclusions reached by the majority.
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¶75 This interpretation of WIS. STAT. § 51.61(1)(g)3. should be favored to give the plain meaning of both statutes their "full force and effect." Anthony D.B., 237 Wis. 2d 1, ¶11. On the other side of the table is the majority's interpretation, which does not give effect to the provisions of § 51.61(1)(g)3. The majority assumes that when the legislature added a provision to restore competency in WIS. STAT. § 971.14 but did not add a provision for dangerousness, it meant what it did not say. When the legislature added this language to § 971.14, it did not disallow the applicability of § 51.61(1)(g)3. The legislature is presumed to understand the statutes as they are in place, and if it intended to remove dangerousness, it knows how to do so. Instead, the legislature left the reference and incorporation language untouched. Statutory construction militates against the majority in this regard as well. ¶76 To be clear, Naomi agrees that WIS. STAT. § 51.61 applies, but she prefers that only some provisions apply to individuals committed under WIS. STAT. § 971.14. She does not want the court-authorization portion of § 51.61(1)(g)3. to apply to her. Her disagreement lies in what she calls the "emergency" exception of the statute. In her view, only the first portion of § 51.61(1)(g)3. gives committing courts the power to order involuntary medication. The second portion, in her opinion, is left to her treating physician to decide. She is wrong. The second exception is merely an alternative that circuit courts may consider. In the absence of a conflict between sections 51.61(1)(g)3. and 971.14, and the ability to read each statute harmoniously without rendering one ineffective, adopting her position should be too far a stretch for this court to entertain. Absent legislative mandate, one cannot pick and choose which portions of a statute they would like to apply.
¶77 In short, WIS. STAT. § 51.61(1)(g)3. seems to explicitly authorize courts to involuntarily medicate a chapter 971 committee under certain circumstances. The emergency portion of that statute specifically references dangerousness as a proper basis on which to seek court authorization. The majority, instead of harmonizing the statutes, qualifies the applicability of § 51.61(1)(g)3. to exclude the authorization portion of the statute. There is virtually no tool of statutory interpretation to support segregating these provisions and excising one. The majority makes no attempt to harmonize these clearly-related statutes. Where related statutes do not conflict, they are to be given full force and effect. The majority can identify no conflict. By § 51.61(1)(g)3.'s unequivocal applicability to § 971.14, the legislature has endowed criminal courts with the power to consider other "needs" for medication, such as dangerousness. Thus,
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dangerousness is certainly a valid consideration for a criminal defendant who needs involuntary medication to regain competency.
III. CONCLUSION
¶78 Today, the majority upends statutory direction which provides a criminal court with the authority to return a criminal defendant to competency. It instead concludes that if a defendant is dangerous, the only way to forcibly medicate a criminal defendant to competency is to require a second, separate WIS. STAT. ch. 51 commitment. The only other option is to rely on a medical professional to administer medication without any court supervision. Neither of these options is satisfactory, nor are they required. The court's result supplants the legislative authority granted in the criminal proceeding. The plain language of the statute, read in context within the whole statutory scheme, does not mandate this contorted result, which is contrary to the legislature's intent and practical considerations. The majority's preference for a dual commitment is simply not required by sound statutory construction principles. A circuit court's ability to forcibly medicate a patient under chapter 51 applies "unless and until the legislature provides alternative provisions." Anthony D.B., 237 Wis. 2d 1, ¶20. Here, the legislature has done no such thing. In short, the plain language of WIS. STAT. § 971.14 does not strip away the circuit court's ability to consider dangerousness as a basis for administering medication to a criminal defendant involuntarily.
¶79 Because criminal courts are granted broad authority and are not precluded from considering dangerousness in restoring a defendant to competency, and have the authority to issue necessary involuntary medication and treatment orders, I respectfully dissent.
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