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.
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