State v. Samuel Curtis Johnson, III , 348 Wis. 2d 450 ( 2013 )

2013 WI 59SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2864-CRAC
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Cross-Respondent-
Petitioner,
v.
Samuel Curtis Johnson, III,
Defendant-Respondent-Cross-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 341 Wis. 2d 492, 815 N.W.2d 407(Ct. App. 2012 – Unpublished)
OPINION FILED: July 3, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 25, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Eugene A. Gasiorkiewicz
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: PROSSER, GABLEMAN, JJ., did not participate.
ATTORNEYS:
For the plaintiff-appellant-cross-respondent-petitioner,
the cause was argued by Marguerite M. Moeller, assistant
attorney general, with whom on the briefs was J.B. Van Hollen,
attorney general.
For the defendant-respondent-cross-appellant, there was a
brief by Michael F. Hunt, Craig S. Powell, Geoffrey R. Misfeldt,
and Kohler & Hart, S.C., Milwaukee, and Mark D. Richards and
Richards & Hall, S.C., Racine, and Stephen J. Meyer and Meyer
Law, Madison. The cause was argued by Mark D. Richards.
An amicus curiae brief was filed by Kathleen Quinn,
Milwaukee, on behalf of T.S.
An amicus curiae brief was filed by Eric J. Wilson and
Dustin B. Brown and Godfrey & Kahn, S.C., Madison, on behalf of
the Wisconsin Coalition Against Sexual Assault.
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2013 WI 59NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2864-CRAC
(L.C. No. 2011CF376)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Cross-Respondent-
Petitioner, FILED
v.
JUL 3, 2013
Samuel Curtis Johnson, III,
Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent-Cross-Appellant.
REVIEW of a decision of the court of appeals. Cause
remanded, affirmed as modified.
¶1 PER CURIAM. This is a review of an unpublished
opinion of the court of appeals that affirmed in part and
reversed in part an order of the circuit court.1 Three issues
are presented for review:
1
State v. Johnson, No. 2011AP2864-CRAC, unpublished slip
op. (Ct. App. Apr. 18, 2012), affirming in part and reversing in
part the circuit court for Racine County, Eugene A.
Gasiorkiewicz, J., presiding.
No. 2011AP2864-CRAC
¶2 First, should State v. Shiffra, 175 Wis. 2d 600, 499
N.W.2d 719 (Ct. App. 1993), be overruled because its holding
rests on an erroneous premise that Pennsylvania v. Ritchie, 480
U.S. 39 (1987) mandates the pretrial in camera review of
privately-held, privileged records? A majority of the court
would not overrule Shiffra. Chief Justice Abrahamson, Justice
Bradley, Justice Crooks, and Justice Ziegler conclude that
Shiffra should not be overruled, observing that this court has
reaffirmed or applied Shiffra in a number of cases.2 Justice
Roggensack concludes that Shiffra should not be applied to
mental health records that are privately held and privileged.
¶3 Second, if Shiffra is not overruled, has the defendant
met his burden under State v. Green, 2002 WI 68, 253 Wis. 2d
356, 646 N.W.2d 298, to make an initial showing of materiality
entitling him to an in camera review of the privately-held
records? A majority of the court concludes that he has met the
requisite burden to make an initial showing of materiality.
Chief Justice Abrahamson, Justice Bradley, and Justice Crooks
conclude that the defendant has satisfied his burden under
Green. Justice Roggensack and Justice Ziegler conclude that the
defendant has not satisfied his burden.
2
See, e.g., Johnson v. Rogers Memorial Hosp., Inc., 2005 WI
114, ¶¶72-73, 283 Wis. 2d 384, 700 N.W.2d 27; State v. Allen,
2004 WI 106, ¶31, 274 Wis. 2d 568, 682 N.W.2d 433; State v.
Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298; State v.
Rizzo, 2002 WI 20, 250 Wis. 2d 407, 640 N.W.2d 93; State v.
Solberg, 211 Wis. 2d 372, 564 N.W.2d 775 (1997); State v.
Speese, 199 Wis. 2d 597, 545 N.W.2d 510 (1996).
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No. 2011AP2864-CRAC
¶4 Third, if Shiffra is not overruled, may the circuit
court require production of the privately-held, privileged
mental health records in this case for in camera review when the
17-year-old privilege-holder refuses to consent to their
release? Chief Justice Abrahamson and Justice Bradley agree
with Judge Brown’s dissent in the present case at the court of
appeals that the circuit court may require production of the
records for an in camera review and that Shiffra does not
necessarily require the suppression of the privilege-holder’s
testimony if she refuses to release her records.3 They would
affirm the circuit court’s determination in this case, which has
already balanced the competing interests, concluding that
suppression of the privilege-holder’s testimony is neither
required nor appropriate as a sanction here.4 Justice Crooks and
Justice Ziegler conclude that the court may not require
production, but their rationales differ. Justice Crooks
concludes that the privilege-holder may not testify without
3
State v. Johnson, No. 2011AP2864-CRAC, ¶24, unpublished
slip op. (Ct. App. Apr. 18, 2012) (Brown, J. dissenting). As
Judge Brown concluded, “the [psychiatrist’s] privilege and the
right to present a defense are . . . two equally conflicting
interests and neither should be given absolute preference over
the other. . . . When there are two competing and compelling
societal interests, it is for the court to balance these
interests on a case-by-case basis.” Id., ¶¶26-27.
4
Chief Justice Abrahamson and Justice Bradley would not
affirm the circuit court’s decision to give a curative jury
instruction regarding any inferences to be taken from the
privilege-holder’s invocation of her privilege because Wis.
Stat. § 905.13 prohibits such an instruction or other comment by
judge or counsel.
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No. 2011AP2864-CRAC
voluntarily producing the records under Shiffra. He is
concerned about the defendant’s ability to present a meaningful
defense. Justice Ziegler concludes that the privilege-holder
may testify because the defendant has not satisfied his burden
under Green. Justice Roggensack concludes that the court cannot
require production of the privately-held, privileged mental
health records, and therefore that the privilege-holder may
testify. Thus, under varying rationales, Chief Justice
Abrahamson, Justice Bradley, Justice Roggensack, and Justice
Ziegler agree that in this case, the privilege-holder may
testify and need not produce the records.
¶5 As a result of the responses to the above third issue,
we determine the following:
¶6 First, under varying rationales, a majority of the
court concludes that in this case, the circuit court may not
require production of the privately-held, privileged mental
health records for in camera review.
¶7 Second, under varying rationales, a majority of the
court concludes that the privilege-holder may testify in this
case.
¶8 Although there is a majority regarding each issue
presented, we limit our writing because of the varied
rationales.
¶9 Accordingly, the decision of the court of appeals is
modified and affirmed. The cause is remanded to the circuit
court for further proceedings. Upon remand, the circuit court
may not require production of the privately-held, privileged
4
No. 2011AP2864-CRAC
mental health records for in camera review. However, upon
remand, the privilege-holder may be called to testify in this
case.
By the Court.—The decision of the court of appeals is
modified and affirmed and, as modified, the cause is remanded to
the circuit court.
¶10 Justices David T. Prosser, Jr. and Michael J. Gableman
did not participate.
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No. 2011AP2864-CRAC
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