Sell factors in Wisconsin

2026Fourth, “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. ¶28 If each of the Sell factors is satisfied, the circuit court may enter an involuntary medication order; however, “[i]f any factor is unsatisfied, involuntary medication is a violation of the Due Process Clause and is unconstitutional.” State 5 Notably, the Hayes court interpreted WIS.

2026Fourth, “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. ¶28 If each of the Sell factors is satisfied, the circuit court may enter an involuntary medication order; however, “[i]f any factor is unsatisfied, involuntary medication is a violation of the Due Process Clause and is unconstitutional.” State 5 Notably, the Hayes court interpreted WIS.

2026STAT.] § 971.14 only when the order complies with the Sell standard.” State v. Fitzgerald, 2019 WI 69, ¶2 , 387 Wis. 2d 384 , 929 N.W.2d 165 .

2026STAT.] § 971.14 only when the order complies with the Sell standard.” State v. Fitzgerald, 2019 WI 69, ¶2 , 387 Wis. 2d 384 , 929 N.W.2d 165 .

2026Even applying de novo review with respect to each of the disputed Sell factors, we conclude that the State presented sufficient evidence to support the issuance of the involuntary medication orders.6 See J.D.B., 414 Wis. 2d 108 , ¶34; Green, 396 Wis. 2d 658, ¶20 .

2026Even applying de novo review with respect to each of the disputed Sell factors, we conclude that the State presented sufficient evidence to support the issuance of the involuntary medication orders.6 See J.D.B., 414 Wis. 2d 108 , ¶34; Green, 396 Wis. 2d 658, ¶20 .

2024STAT. § 971.14 (2021-22)3 may include involuntary medication only when the 2 Having concluded that Wisconsin law adequately sets forth the standard of review on the constitutional issue Crosby raises (and because such review consists of a de novo consideration of the issue, the most favorable standard for Crosby’s position), we leave for another day the State’s assertion that the court should adopt separate standards of review for each of the Sell factors, as articulated in United States v. Diaz, 630 F.3d 1314, 1330-31 (11th Cir. 2011).

2024STAT. § 971.14 (2021-22)3 may include involuntary medication only when the 2 Having concluded that Wisconsin law adequately sets forth the standard of review on the constitutional issue Crosby raises (and because such review consists of a de novo consideration of the issue, the most favorable standard for Crosby’s position), we leave for another day the State’s assertion that the court should adopt separate standards of review for each of the Sell factors, as articulated in United States v. Diaz, 630 F.3d 1314, 1330-31 (11th Cir. 2011).

2026“The State is required to prove the factual components of each of the four factors by clear and convincing evidence.” Id. ¶29 Wisconsin law is unsettled as to the standard of review that we apply to a circuit court’s determination of whether the four Sell factors are satisfied.

2026“The State is required to prove the factual components of each of the four factors by clear and convincing evidence.” Id. ¶29 Wisconsin law is unsettled as to the standard of review that we apply to a circuit court’s determination of whether the four Sell factors are satisfied.

2024Given the way the September 2022 version of the CR-206 form is structured, the circuit court’s conclusion that dangerousness was an alternative standard separate from the Sell factors that could be used to order involuntary medication in this case is entirely understandable and a predictable consequence of structuring the form in this way. 6 No. 2023AP722-CR factors do not apply, and the court should instead proceed under Washington v. Harper, 494 U.S. 210 (1990).

2024Given the way the September 2022 version of the CR-206 form is structured, the circuit court’s conclusion that dangerousness was an alternative standard separate from the Sell factors that could be used to order involuntary medication in this case is entirely understandable and a predictable consequence of structuring the form in this way. 6 No. 2023AP722-CR factors do not apply, and the court should instead proceed under Washington v. Harper, 494 U.S. 210 (1990).

2026The treatment plan included a certification from the doctor that “to a reasonable degree of medical certainty” the medication was medically 6 See supra ¶21 n.3; see also Dillon, 738 F.3d at 291 (collecting cases); accord Fazio, 599 F.3d at 839 (“[T]he overwhelming majority of courts have held Sell factors two through four present factual questions subject to clear error review.”). 13 STATE v. J.D.B.

2026The treatment plan included a certification from the doctor that “to a reasonable degree of medical certainty” the medication was medically 6 See supra ¶21 n.3; see also Dillon, 738 F.3d at 291 (collecting cases); accord Fazio, 599 F.3d at 839 (“[T]he overwhelming majority of courts have held Sell factors two through four present factual questions subject to clear error review.”). 13 STATE v. J.D.B.

2026See Valenzuela-Puentes, 479 F.3d at 1226 (“The fact that Mr. Valenzuela-Puentes is a recidivist not only increases the possible sentence he faces if convicted, but also increases the government’s interest in prosecuting him.”); but see United States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005) (rejecting consideration of likely sentence under sentencing guidelines as “unworkable,” and relying instead on maximum penalty as the measure of the government’s interest; but vacating the forced medication order based on the government’s failure to prove the second and fourth Sell factors).

2026See Valenzuela-Puentes, 479 F.3d at 1226 (“The fact that Mr. Valenzuela-Puentes is a recidivist not only increases the possible sentence he faces if convicted, but also increases the government’s interest in prosecuting him.”); but see United States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005) (rejecting consideration of likely sentence under sentencing guidelines as “unworkable,” and relying instead on maximum penalty as the measure of the government’s interest; but vacating the forced medication order based on the government’s failure to prove the second and fourth Sell factors).

2022Thus, the Sell factors were improperly applied below to evaluate the motion for involuntary medication given the context of Johnson’s commitment at MMHI under § 971.17(3). ¶14 Moreover, “Sell’s standard was for the involuntary medication of a criminal defendant incompetent to stand trial,” and there is a standard separate from Sell that applies to “different” purposes “related to the individual’s 7 Our supreme court described the four Sell factors in State v. Fitzgerald, 2019 WI 69, ¶¶13-17 , 387 Wis. 2d 384 , 929 N.W.2d 165 , and most recently in State v. Green, 2022 WI 30, ¶¶15-16 , ___ N.W.

2022Thus, the Sell factors were improperly applied below to evaluate the motion for involuntary medication given the context of Johnson’s commitment at MMHI under § 971.17(3). ¶14 Moreover, “Sell’s standard was for the involuntary medication of a criminal defendant incompetent to stand trial,” and there is a standard separate from Sell that applies to “different” purposes “related to the individual’s 7 Our supreme court described the four Sell factors in State v. Fitzgerald, 2019 WI 69, ¶¶13-17 , 387 Wis. 2d 384 , 929 N.W.2d 165 , and most recently in State v. Green, 2022 WI 30, ¶¶15-16 , ___ N.W.

2026See Valenzuela-Puentes, 479 F.3d at 1226 (“The fact that Mr. Valenzuela-Puentes is a recidivist not only increases the possible sentence he faces if convicted, but also increases the government’s interest in prosecuting him.”); but see United States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005) (rejecting consideration of likely sentence under sentencing guidelines as “unworkable,” and relying instead on maximum penalty as the measure of the government’s interest; but vacating the forced medication order based on the government’s failure to prove the second and fourth Sell factors).

2026See Valenzuela-Puentes, 479 F.3d at 1226 (“The fact that Mr. Valenzuela-Puentes is a recidivist not only increases the possible sentence he faces if convicted, but also increases the government’s interest in prosecuting him.”); but see United States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005) (rejecting consideration of likely sentence under sentencing guidelines as “unworkable,” and relying instead on maximum penalty as the measure of the government’s interest; but vacating the forced medication order based on the government’s failure to prove the second and fourth Sell factors).

2026See State v. Pettit, 171 Wis. 2d 627, 646-47 , 492 N.W.2d 633 (Ct. App. 1992) (explaining that this court will not “serve as both advocate and judge” by developing arguments for the parties). ¶18 Because we conclude that the appeal is moot, we do not reach Lauren’s arguments disputing whether the State proved the Sell factors by clear and convincing evidence.

2026See State v. Pettit, 171 Wis. 2d 627, 646-47 , 492 N.W.2d 633 (Ct. App. 1992) (explaining that this court will not “serve as both advocate and judge” by developing arguments for the parties). ¶18 Because we conclude that the appeal is moot, we do not reach Lauren’s arguments disputing whether the State proved the Sell factors by clear and convincing evidence.

2026See J.W.K., 386 Wis. 2d 672, ¶11 .

2026The treatment plan included a certification from the doctor that “to a reasonable degree of medical certainty” the medication was medically 6 See supra ¶21 n.3; see also Dillon, 738 F.3d at 291 (collecting cases); accord Fazio, 599 F.3d at 839 (“[T]he overwhelming majority of courts have held Sell factors two through four present factual questions subject to clear error review.”). 13 STATE v. J.D.B.

2026The treatment plan included a certification from the doctor that “to a reasonable degree of medical certainty” the medication was medically 6 See supra ¶21 n.3; see also Dillon, 738 F.3d at 291 (collecting cases); accord Fazio, 599 F.3d at 839 (“[T]he overwhelming majority of courts have held Sell factors two through four present factual questions subject to clear error review.”). 13 STATE v. J.D.B.

2025See Kirk v. Credit Acceptance Corp., 2013 WI App 32 , ¶5 n.1, 346 Wis. 2d 635 , 829 N.W.2d 522 . 3 Sell v. United States, 539 U.S. 166 (2003). 3 No. 2024AP106-CR ¶8 Her primary arguments focus on the first Sell factor and special circumstances that should have been considered by the circuit court under that factor, and then the State’s inability to meet the other Sell factors based on the lack of an individualized treatment plan.

2025See Kirk v. Credit Acceptance Corp., 2013 WI App 32 , ¶5 n.1, 346 Wis. 2d 635 , 829 N.W.2d 522 . 3 Sell v. United States, 539 U.S. 166 (2003). 3 No. 2024AP106-CR ¶8 Her primary arguments focus on the first Sell factor and special circumstances that should have been considered by the circuit court under that factor, and then the State’s inability to meet the other Sell factors based on the lack of an individualized treatment plan.

2025State v. Blalock, 150 Wis. 2d 688, 703 , 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on the narrowest possible ground[.]”) 11 No. 2025AP437-CR CONCLUSION ¶25 We conclude that the State met its burden to satisfy all four Sell factors by clear and convincing evidence.

2025State v. Blalock, 150 Wis. 2d 688, 703 , 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on the narrowest possible ground[.]”) 11 No. 2025AP437-CR CONCLUSION ¶25 We conclude that the State met its burden to satisfy all four Sell factors by clear and convincing evidence.

2024See Turner v. Taylor, 2003 WI App 256 , ¶1 n.1, 268 Wis. 2d 628 , 673 N.W.2d 716 (observing we need not address all issues raised by the parties if one is dispositive). ¶25 We also need not consider whether the misdemeanor involuntary medication order is constitutionally deficient.

2024See Turner v. Taylor, 2003 WI App 256 , ¶1 n.1, 268 Wis. 2d 628 , 673 N.W.2d 716 (observing we need not address all issues raised by the parties if one is dispositive). ¶25 We also need not consider whether the misdemeanor involuntary medication order is constitutionally deficient.

2024Outagamie Cnty. v. Melanie L., 2013 WI 67, ¶80 , 349 Wis. 2d 148 , 833 N.W.2d 607 ; see also Leitner, 253 Wis. 2d 449, ¶14 . ¶29 Although the Sell decision is over two decades old, there are few binding cases in Wisconsin interpreting and applying the Sell factors.

2024Outagamie Cnty. v. Melanie L., 2013 WI 67, ¶80 , 349 Wis. 2d 148 , 833 N.W.2d 607 ; see also Leitner, 253 Wis. 2d 449, ¶14 . ¶29 Although the Sell decision is over two decades old, there are few binding cases in Wisconsin interpreting and applying the Sell factors.

2023See Cook v. Cook, 208 Wis. 2d 166, 188 , 560 N.W.2d 246 (1997). ¶18 In addition, Wis. Stat. § 971.14 provides for pre- trial competency procedures.

2023See Cook v. Cook, 208 Wis. 2d 166, 188 , 560 N.W.2d 246 (1997). ¶18 In addition, Wis. Stat. § 971.14 provides for pre- trial competency procedures.

2021See also Matter of D.K., 2020 WI 8, ¶¶28-29 , 390 Wis. 2d 50 , 937 N.W.2d 901 (due process demands the clear and convincing standard for civil commitment cases). 10 No. 2020AP298-CR through fourth Sell factors are “factual in nature”).11 Green, citing our supreme court’s decision in Langlade County v. D.J.W., 2020 WI 41, ¶47 , 391 Wis. 2d 231 , 942 N.W.2d 277 , argues that the second through fourth Sell factors are legal questions reviewed de novo.12 Both parties frame their arguments in terms of whether the evidence here is sufficient to satisfy the second through fourth Sell factors. ¶20 We

2021See, e.g., United States v. Gomes, 387 F.3d 157, 160 (2nd Cir. 2004) (stating that the clearly erroneous standard is used because the second 10 The “clear and convincing” standard of proof is an “intermediate” standard of proof (between the “beyond a reasonable doubt” of criminal proceedings and the “preponderance of the evidence” of most civil proceedings), applied in this context to “protect particularly important individual interests” where the outcome of the proceeding is “of such weight and gravity” that due process under the Fourteenth Amendment requires the State to meet a “proof more s

2021See, e.g., United States v. Gomes, 387 F.3d 157, 160 (2nd Cir. 2004) (stating that the clearly erroneous standard is used because the second 10 The “clear and convincing” standard of proof is an “intermediate” standard of proof (between the “beyond a reasonable doubt” of criminal proceedings and the “preponderance of the evidence” of most civil proceedings), applied in this context to “protect particularly important individual interests” where the outcome of the proceeding is “of such weight and gravity” that due process under the Fourteenth Amendment requires the State to meet a “proof more s

2021See also Matter of D.K., 2020 WI 8, ¶¶28-29 , 390 Wis. 2d 50 , 937 N.W.2d 901 (due process demands the clear and convincing standard for civil commitment cases). 10 No. 2020AP298-CR through fourth Sell factors are “factual in nature”).11 Green, citing our supreme court’s decision in Langlade County v. D.J.W., 2020 WI 41, ¶47 , 391 Wis. 2d 231 , 942 N.W.2d 277 , argues that the second through fourth Sell factors are legal questions reviewed de novo.12 Both parties frame their arguments in terms of whether the evidence here is sufficient to satisfy the second through fourth Sell factors. ¶20 We

2021See also Matter of D.K., 2020 WI 8, ¶¶28-29 , 390 Wis. 2d 50 , 937 N.W.2d 901 (due process demands the clear and convincing standard for civil commitment cases). 10 No. 2020AP298-CR through fourth Sell factors are “factual in nature”).11 Green, citing our supreme court’s decision in Langlade County v. D.J.W., 2020 WI 41, ¶47 , 391 Wis. 2d 231 , 942 N.W.2d 277 , argues that the second through fourth Sell factors are legal questions reviewed de novo.12 Both parties frame their arguments in terms of whether the evidence here is sufficient to satisfy the second through fourth Sell factors. ¶20 We

2021See id. at 213-14 ; see also Winnebago Cnty v. C.S., 2020 WI 33, ¶30 , 391 Wis. 2d 35 , 940 N.W.2d 875 (where the court distinguished Harper from Sell because Harper discussed “involuntary medication of an inmate for a ‘different purpose’ than competence to stand trial”); United States v. Debenedetto, 757 F.3d 547, 552 (7th Cir. 2014) (“When the Government seeks to medicate involuntarily a defendant solely for the purpose of rendering the defendant competent to stand trial … it must meet a higher standard to counterbalance the defendant’s right to avoid involuntary medication” than when involu

2021See id. at 213-14 ; see also Winnebago Cnty v. C.S., 2020 WI 33, ¶30 , 391 Wis. 2d 35 , 940 N.W.2d 875 (where the court distinguished Harper from Sell because Harper discussed “involuntary medication of an inmate for a ‘different purpose’ than competence to stand trial”); United States v. Debenedetto, 757 F.3d 547, 552 (7th Cir. 2014) (“When the Government seeks to medicate involuntarily a defendant solely for the purpose of rendering the defendant competent to stand trial … it must meet a higher standard to counterbalance the defendant’s right to avoid involuntary medication” than when involu