State Ex Rel. Office of the State Public Defender v. Court of Appeals

2013 WI 31SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP544-W
COMPLETE TITLE: In the Matter of State v. Michael B. Buchanan,
2011AP1997-CR:
State of Wisconsin ex rel. Office of the State
Public
Defender,
Petitioner,
v.
Court of Appeals, District IV and the Honorable
Paul Lundsten, presiding,
Respondents.
PETITION FOR SUPERVISORY WRIT
BEFORE THE SUPREME COURT
OPINION FILED: April 9, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 5, 2012
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., PROSSER, J.,
dissent. (Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner, there were briefs by Joseph N. Ehmann,
first assistant state public defender, and Kelli S. Thompson,
state public defender, and oral argument by Joseph N. Ehmann.
For the respondents, there was a brief by Patrick J.
Fiedler and Tyler Wilkinson, and Axley Brynelson, LLP, Madison,
and oral argument by Patrick J. Fiedler.
An amicus curiae brief was filed on behalf of the State of
Wisconsin by Marguerite M. Moeller, assistant attorney general,
with whom on the brief was J.B. Van Hollen, attorney general.
2
2013 WI 31NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP544-W
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of State v. Michael B. Buchanan,
2011AP1997-CR (L.C. No. 2009CF113):
State of Wisconsin ex rel. Office of the State
Public Defender, FILED
Petitioner,
APR 9, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Court of Appeals, District IV and the Honorable
Paul Lundsten, presiding,
Respondents.
PETITION for supervisory writ. Rights declared; relief
granted, case proceeds accordingly at the court of appeals.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of
an order of the court of appeals1 that required defense counsel
to seek permission from the circuit court in order to reference
information from a presentence investigation report (PSI) in an
appellate brief.
1
State v. Buchanan, 2011AP1997-CR, unpublished order (Wis.
Ct. App. Feb. 13, 2012).
No. 2012AP544-W
¶2 Assistant State Public Defender Steven Grunder
(Grunder) was appointed as postconviction counsel for Michael
Buchanan (Buchanan). Grunder, on Buchanan's behalf, filed a
motion with the court of appeals seeking permission to use, cite
to, and quote from2 Buchanan's PSI in his appellate brief. The
court of appeals granted the motion. The State, in turn, filed
a motion seeking the same permission to use, cite to, and quote
from the PSI for its own appellate brief. The State's motion
stated that it had been the attorney general's practice to seek
the circuit court's permission to cite a PSI in an appellate
brief following State v. Parent, 2006 WI 132, 298 Wis. 2d 63,
725 N.W.2d 915. The court of appeals then issued an order that
placed under seal all copies of Buchanan's brief, directed the
parties to move the circuit court for permission to cite the
PSI, and denied the State's motion to the court of appeals for
permission to cite the PSI. The State Public Defender (SPD)
petitioned this court to issue a supervisory writ vacating the
court of appeals' order and clarifying that the parties in
Buchanan's case need not ask permission of any court before
citing the PSI in their appellate briefs. Uniquely, the State
filed an amicus brief agreeing with the SPD.
¶3 We conclude that the SPD has not met the requirements
for issuance of a supervisory writ. However, pursuant to our
superintending and administrative authority, we conclude that in
2
Throughout the opinion, "reference" includes use, citation
to, and quotation from the PSI.
2
No. 2012AP544-W
a merit appeal, parties who are entitled "to have and keep a
copy" of a PSI pursuant to Wis. Stat. § 972.15(4m) (2009-10)3
need not ask any court's permission to reference a PSI in an
appellate brief. Parties may reference information from the PSI
that does not reveal confidential information and that is
relevant to the appeal. We urge counsel to be abundantly
cautious when deciding whether it is necessary to cite sensitive
information and when choosing how to cite such content.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 In 2010, Buchanan pled no contest to two crimes. The
circuit court sentenced Buchanan, and he filed a notice of
intent to pursue postconviction relief. The SPD assigned
Attorney Grunder to represent Buchanan. On November 22, 2011,
Buchanan's counsel filed a motion with the court of appeals
seeking permission to cite "the portions of the PSI relevant to
the defendant's appeal." The motion stated that Buchanan's
appeal was focused on sentencing issues, that it was necessary
to cite the PSI to develop Buchanan's appellate claims, and that
the portions of the PSI that Buchanan sought to use contained no
confidential information. On November 30, 2011, the court of
appeals issued an order granting the motion. The order allowed
Buchanan to "quote sparingly" from the PSI but directed him not
to use the initials or, by extension, the names of any
3
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
3
No. 2012AP544-W
individuals identified in the PSI. Buchanan then filed the
appellate brief.
¶5 On January 4, 2012, a motion was filed on the State's
behalf seeking the same permission to "quote from the PSI,
subject to the same constraints" for the purposes of its own
appellate brief. The State's motion stated that to fully
respond to Buchanan's appellate brief, it needed permission to
cite the PSI. The motion noted that following Parent, it has
been the practice of the attorney general's office to seek
permission from the circuit court to cite a PSI in an appellate
brief.
¶6 On February 13, 2012, the court of appeals issued an
order that, inter alia, placed under seal all copies of
Buchanan's brief, directed the parties to move the circuit court
for permission to "access, discuss, cite to, or quote from the
PSI," and denied the State's motion to the court of appeals for
permission to cite the PSI. The court of appeals reasoned that
"Parent makes clear that the circuit court, and not this court,
is the proper tribunal to preside over motions requesting access
to and disclosure of the contents of PSI reports."
¶7 On February 24, 2012, Buchanan filed a motion for
reconsideration in the court of appeals. Buchanan argued that a
defendant has a right to deny or explain statements in the PSI,
which could be violated if he or she is required to obtain
circuit court permission to use the PSI. Further, Buchanan
argued that Parent is limited to no-merit appeals and that the
confidentiality requirement of Wis. Stat. § 972.15(4) and (4m)
4
No. 2012AP544-W
is met by compliance with Wis. Stat. § (Rule) 809.81(8)
("Every . . . document that is filed in the court and that is
required by law to be confidential shall refer to individuals
only by their first name and the first initial of their last
name.").
¶8 On March 2, 2012, the court of appeals denied
Buchanan's motion for reconsideration.
¶9 On March 14, 2012, the SPD petitioned this court for a
supervisory writ. The petition asks this court to vacate the
court of appeals' order that required the parties to move the
circuit court for permission to "access, discuss, cite to, or
quote from the PSI." The SPD, and the State as an amicus, asks
this court to rule that parties who are entitled "to have and
keep a copy" of a PSI need not ask any court's permission to
cite to or quote from a PSI in an appellate brief, subject to
the confidentiality requirement of Wis. Stat. § 972.15(4)——(4m).
¶10 On June 13, 2012, we accepted the case for full
briefing and argument.
II. STANDARD OF REVIEW
¶11 The first question presented is whether this court
should issue a supervisory writ vacating the court of appeals'
order. As the court of original jurisdiction, we have
discretion to issue a supervisory writ. See Wis. Const. art.
VII, § 3; Wis. Stat. § 751.07; State ex rel. Dressler v. Circuit
Court for Racine Cnty., 163 Wis. 2d 622, 630, 472 N.W.2d 532(Ct. App. 1991). However, a supervisory writ is a drastic and
extraordinary remedy that will not be granted unless the
5
No. 2012AP544-W
petition meets "stringent prerequisites." State ex rel. Lynch
v. County Court, Branch III, 82 Wis. 2d 454, 459, 262 N.W.2d 773(1978).
¶12 The second question presented is whether parties who
are entitled "to have and keep a copy" of a PSI pursuant to Wis.
Stat. § 972.15(4m) need any court's permission to reference a
PSI in an appellate brief. This question requires us to
interpret § 972.15. Interpretation of a statute is a question
of law that this court reviews de novo while benefitting from
the analyses of the lower courts. See State v. Ziegler, 2012 WI
73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238.
III. ANALYSIS
A. Supervisory Writ
¶13 We conclude that the SPD has not met the requirements
for issuance of a supervisory writ. However, pursuant to our
superintending and administrative authority, we nonetheless
consider the second question presented.
¶14 "A supervisory writ is an extraordinary remedy to
prevent a court from refusing to perform, or from violating, its
plain duty." Madison Metro. Sch. Dist. v. Circuit Court for
Dane Cnty., 2011 WI 72, ¶33, 336 Wis. 2d 95, 800 N.W.2d 442(citing Dressler, 163 Wis. 2d at 630). A petition for a
supervisory writ will not be issued unless:
(1) an appeal is an utterly inadequate remedy; (2) the
duty of the [] court is plain; (3) its refusal to act
within the line of such duty or its intent to act in
violation of such duty is clear; (4) the results of
the [] court's action must not only be prejudicial but
6
No. 2012AP544-W
must involve extraordinary hardship; and, (5) the
request for relief was made promptly and speedily.
Id., ¶77 (quoting Dressler, 163 Wis. 2d at 630).
¶15 The parties agree on the first prong, that an appeal
would be an inadequate remedy, and on the fifth prong, that the
SPD's request for relief was made promptly and speedily. The
SPD argues that under Wis. Stat. § 972.15, the court of appeals
had a plain duty to accept Buchanan's brief as filed and its
refusal to accept Buchanan's brief was clear. Further, the SPD
argues that requiring it to seek circuit court permission to
cite a PSI would be an extraordinary hardship because it may
violate a defendant's due process right to appeal and would be
too costly for the SPD. The court of appeals argues that it did
not violate a plain duty when it ordered Buchanan to seek
circuit court permission to cite his PSI. The court of appeals
further argues that it would not be an extraordinary hardship
for the SPD to seek circuit court permission to cite a PSI.
¶16 The standard for "extraordinary hardship" has been met
in few cases. For example, in Madison Metropolitan, after a
school district expelled a student, the circuit court issued an
order requiring the district to provide appropriate educational
resources to the student. 336 Wis. 2d 95, ¶22. This court
affirmed the court of appeals' grant of a supervisory writ,
finding that the "extraordinary hardship" prong had been met:
[T]he potential extraordinary harm to the District is
inherent in the specter of interference by the courts.
The District would be faced not only with the costs of
any continued educational services ordered by the
circuit court but also the prospect that such costs
7
No. 2012AP544-W
would interfere with the District's performance of its
duties in lawfully expelling students who endanger the
health and safety of others.
Id., ¶89. In Lynch, in response to a criminal defendant's
demand for all exculpatory material in the district attorney's
possession at the preliminary hearing stage, the circuit court
ordered the district attorney to make its case files available
for defense counsel's inspection. 82 Wis. 2d at 458-59. The
State argued that the circuit court's order would cause an
extraordinary hardship because it would, inter alia,
"unjustifiably delay" the case below and would "create a
precedent which is likely to hinder the efforts of the
prosecution in future cases." Id. at 462-63. We agreed that
the extraordinary hardship test had been met:
Inspection of the state's files by the defense at
this early stage, where there has been no showing of
particularized need for inspection, can serve only as
an opportunity for generalized, unrestricted
discovery, rather than as a device for the
constitutionally mandated disclosure of specific
exculpatory material. Such discovery . . . will
unjustifiably delay the administration of justice.
Id. at 466 (footnote omitted).
¶17 In the case before the court, even assuming the delay
and extra cost of obtaining circuit court permission would cause
an "extraordinary hardship," we conclude that the SPD has not
met the criteria to grant a supervisory writ. After Parent,
there remained a legitimate question of whether parties to a
merit appeal needed circuit court permission to cite a PSI in
their appellate briefs. When Buchanan filed his brief including
information from his PSI, it was unclear whether the court of
8
No. 2012AP544-W
appeals had a plain duty to accept the brief as filed. Part
III.B.1. of this opinion discusses that question.
¶18 We nonetheless conclude that it is appropriate for
this court to exercise our superintending and administrative
authority to clarify the procedure that a defendant's counsel
and the State's representative should follow to cite a PSI in
their appellate briefs. Superintending and administrative
authority allows this court to implement "procedural rules not
specifically required by the Constitution or the [statute]."
State v. Ernst, 2005 WI 107, ¶19, 283 Wis. 2d 300, 699 N.W.2d 92(quoting United States v. Hasting, 461 U.S. 499, 505 (1983)).
"Such rules are designed to implement a remedy for a violation
of recognized rights." Id. The Wisconsin Constitution provides
that "[t]he supreme court shall have superintending and
administrative authority over all courts." Wis. Const. art.
VII, § 3. This power "is indefinite in character, unsupplied
with means and instrumentalities, and limited only by the
necessities of justice." Ernst, 283 Wis. 2d 300, ¶19.
B. Citation to a PSI in an Appellate Brief
1. Interpretation of Wis. Stat. § 972.15¶19 Pursuant to our superintending and administrative
authority, we conclude that in a merit appeal, parties who are
entitled "to have and keep a copy" of a PSI pursuant to Wis.
Stat. § 972.15(4m) need not ask any court's permission to
reference a PSI in an appellate brief. Parties may reference
information from the PSI that does not reveal confidential
9
No. 2012AP544-W
information and that is relevant to the appeal. Extreme caution
should be undertaken when referencing sensitive information.4
¶20 The SPD, joined by the State as an amicus, argues that
court permission is not needed before defense counsel or the
State may cite to a PSI in an appellate brief. The SPD argues
that requiring circuit court permission may violate a
defendant's rights, since a defendant has a due process right to
be sentenced upon accurate information, see State v. Tiepelman,
2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1, a right to
disclosure of all information in the PSI, see Gardner v.
Florida, 430 U.S. 349, 361-62 (1977), and a right to challenge
any statement in the PSI that he or she believes to be
inaccurate or incomplete, see State v. Greve, 2004 WI 69, ¶11,
272 Wis. 2d 444, 681 N.W.2d 479. The SPD further argues that
Wis. Stat. § 972.15(4m), which authorizes the district attorney
and the defendant's attorney "to have and keep a copy" of the
PSI, should be interpreted to authorize those parties to use,
cite, and quote the PSI in an appellate brief without court
authorization. The SPD additionally argues that Parent is
limited to no-merit appeals.
¶21 The court of appeals concluded that the circuit court
is the appropriate tribunal to grant authorization to cite a PSI
in an appellate brief. It determined that under Wis. Stat.
4
A PSI should be quoted as sparingly as possible, and
counsel must exercise sound discretion to avoid compromising
sensitive information. On occasion, appellate counsel may need
guidance from the court of appeals.
10
No. 2012AP544-W
§ 972.15(4), after sentencing, the PSI "shall be confidential
and shall not be made available to any person except upon
specific authorization of the court." Further, under Wis. Stat.
§ 967.02(7), "'Court' means the circuit court unless otherwise
indicated." The court of appeals reasons that though Wis. Stat.
§ 972.15(4m) entitles the district attorney and defense counsel
to "have and keep a copy" of the PSI, it does not authorize them
to use, cite, or quote the PSI.
¶22 The resolution of this question requires
interpretation of Wis. Stat. § 972.15, which states in relevant
part:
(3) The judge may conceal the identity of any
person who provided information in the presentence
investigation report.
(4) Except as provided in sub. (4m), (5), or (6),
after sentencing the presentence investigation report
shall be confidential and shall not be made available
to any person except upon specific authorization of
the court.
(4m) The district attorney and the defendant's
attorney are entitled to have and keep a copy of the
presentence investigation report. If the defendant is
not represented by counsel, the defendant is entitled
to view the presentence investigation report but may
not keep a copy of the report. A district attorney or
defendant's attorney who receives a copy of the report
shall keep it confidential. A defendant who views the
contents of a presentence investigation report shall
keep the information in the report confidential.
Under § 972.15(4), there is a general rule that after
sentencing, the PSI is confidential and parties seeking access
must seek "specific authorization of the court." However,
certain parties are exempted from this general rule under
11
No. 2012AP544-W
§ 972.15(4m), including "[t]he district attorney and the
defendant's attorney." These parties are entitled "to have and
keep a copy" of the PSI, but the PSI must be kept
"confidential."
¶23 "'The purpose of statutory interpretation is to
determine what the statute means so that it may be given its
full, proper, and intended effect.'" Ziegler, 342 Wis. 2d 256,
¶42 (quoting Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI
26, ¶26, 339 Wis. 2d 125, 810 N.W.2d 465). Statutory
interpretation "begins with the language of the statute."
State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Except for technical or
specially-defined words, statutory language is given its common,
ordinary meaning. Id. Statutory language is interpreted in the
context in which it is used, not in isolation but as part of a
whole. Id., ¶46. We must construe statutory language
reasonably; an unreasonable interpretation is one that yields
absurd results or one that contravenes the statute's manifest
purpose. Id.
¶24 We conclude that in a merit appeal, parties who are
entitled "to have and keep a copy" of a PSI pursuant to Wis.
Stat. § 972.15(4m) need not ask any court's permission to
12
No. 2012AP544-W
reference a PSI in an appellate brief, subject to restrictions
outlined in Part III.B.2.5
¶25 While we agree with the court of appeals that the
circuit court is a "gatekeeper" of the PSI, the statutory
language does not require parties' attorneys to obtain circuit
court permission before referencing a PSI in an appellate brief.
The court of appeals determined that under § 972.15(4), the
circuit court alone may authorize access to the PSI. It is true
that Wis. Stat. § 967.02(7) defines "court" as the circuit court
and Wis. Stat. § 972.15 otherwise requires court authorization
to release the PSI. However, this determination does not fully
consider that the defendant's attorney and the State are already
entitled "to have and keep a copy" of the PSI under Wis. Stat.
§ 972.15(4m).
5
As a practical matter, this holding applies whether a
defendant maintains his or her trial counsel, retains new
appellate counsel, or is appointed appellate counsel through the
SPD on appeal. Similarly, this rule applies whether the
district attorney maintains responsibility or the attorney
general assumes responsibility of the case on appeal. As a
general rule, appellate counsel has access to trial counsel's
file in order to appropriately appeal or respond to the appeal.
Once the attorney general takes over the appeal from the
district attorney, the district attorney "shall transfer all
necessary files and papers relating to the case to the attorney
general." Wis. Stat. § 752.31(4); Wisconsin Department of
Justice, Appellate Practice for Wisconsin Prosecutors 10 (May
2012) (discussing transfer of files between district attorney
and attorney general). Similarly, the defendant's appellate
counsel obtains the defendant's case file from trial counsel.
See The Wisconsin State Public Defender's Office SPD Appellate
Division, Comprehensive Checklist Guide, available at
http://www.wisspd.org/htm/ATPracGuides/Appellate.asp (appellate
counsel should secure case materials from trial counsel within
one week of appointment).
13
No. 2012AP544-W
¶26 The court of appeals also turns to the fact that the
statute does not specifically authorize those who are entitled
"to have and keep a copy" of the PSI to actually "use" it. We
disagree with the court of appeals' reasoning. The court of
appeals points to Wis. Stat. § 972.15(5) and (6), which
authorize "use" of the PSI for the Department of Corrections
(DOC) and for parties involved in Chapter 980 proceedings.6 It
reasons that because the statute authorizes "use" in those
instances, court permission must be received in order for those
who are entitled "to have and keep a copy" of the PSI to "use"
it. However, the DOC and the parties to a subsequent civil
proceeding are in a different position than counsel representing
parties to the underlying criminal matter for which the PSI was
created. Unlike the attorneys, who under § 972.15(4m) are
entitled "to have and keep a copy" of the PSI, those referenced
in § 972.15(5) and (6) would not otherwise have access to the
PSI absent that language, nor would they be parties to an appeal
of the underlying criminal matter. The attorneys in the
criminal matter, who are granted authority "to have and keep a
copy" of the PSI in the criminal matter, have been granted that
authority because they may need to use that PSI in the appeal.
6
Wisconsin Stat. § 972.15(5) authorizes the DOC to "use"
the PSI for correctional programming, treatment planning, and
similar purposes. The DOC may also authorize access to a PSI to
third parties for research. Under § 972.15(6), various parties
can "use[]" the PSI in a Chapter 980 proceeding. No further
court permission is needed for them to "use" the PSI even though
they had no standing in the criminal matter for which the PSI
was created.
14
No. 2012AP544-W
¶27 Moreover, a practical example of how the statute is
interpreted proves helpful. Under § 972.15(1), "the court may
order" a PSI even though the statute does not specifically say
that the court may "use" the PSI for the purpose of sentencing a
defendant. Nonetheless, the circuit court properly "uses" the
PSI when sentencing the defendant.
¶28 Furthermore, under Wis. Stat. § 808.075, once a case
is appealed, the circuit court's power is limited. Wis. Stat.
§ 808.075(4)(g). For example, it does not retain power to
redact portions of the PSI.7 The parties would have to petition
the court of appeals under § 808.075(5) to remand the case to
the circuit court. If the petition for remand was granted, then
the court of appeals would have to send the case record back to
the circuit court. See § 808.075(6). Further, there is no
guarantee that upon remand, the same circuit court judge will
hear the motion to reference the PSI. There is no quantifiable
benefit if this procedure is required.
¶29 Our interpretation of Wis. Stat. § 972.15 is not in
conflict with Parent, as that case was centered around access to
the PSI, not use of the PSI. We conclude that the rule of
7
The circuit court and trial counsel should exercise great
caution when the case is before the circuit court to ensure that
the PSI is properly redacted before it goes up on appeal. Under
Wis. Stat. § 972.15(3), before sentencing, the circuit court
judge already has the power to "conceal the identity of any
person who provided information" in the PSI. Parties must also
comply with various rules of confidentiality, including Wis.
Stat. § (Rule) 809.81(8) (refer to individuals in confidential
documents by first name and first initial of last name).
15
No. 2012AP544-W
Parent is confined to no-merit appeals.8 In Parent, this court
held that in a no-merit appeal, the defendant is entitled to
view a copy of the PSI, subject to redaction of identifying
information of informants and to the requirement that the
defendant keep the information in the PSI confidential. 298
Wis. 2d 63, ¶50. Further, we held that the attorney general's
office, which is typically not involved in no-merit appeals,
must make its request to obtain a copy and disclose contents of
the PSI to the circuit court. Id.8
The no-merit appeal procedure seeks to reconcile a
defendant's right to appeal and right to effective assistance of
counsel, with an attorney's duty to avoid making frivolous
arguments. State v. Parent, 2006 WI 132, ¶¶17-19, 298
Wis. 2d 63, 725 N.W.2d 915. If a defendant wishes to appeal a
conviction and counsel does not believe there is any merit to
the defendant's arguments, counsel must follow the procedure set
forth in Wis. Stat. § (Rule) 809.32 and State v. Tillman, 2005
WI App 71, 281 Wis. 2d 157, 696 N.W.2d 574:
First, appointed counsel examines the record for
potential appellate issues of arguable merit. See
Rule 809.32(1)(a) ("The no merit report shall identify
anything in the record that might arguably support the
appeal and discuss the reasons why each identified
issue lacks merit."). Next, the defendant has the
opportunity to respond to the no merit report and
raise additional issues. Rule 809.32(1)(e). Next, as
contemplated by Anders, the appellate court not only
examines the no merit report but also conducts its own
scrutiny of the record to see if there are any
potential appellate issues with arguable merit.
Finally, the court's no merit decision sets forth the
potential appellate issues and explains in turn why
each has no arguable merit.
Id., ¶17 (citing Anders v. California, 386 U.S. 738, 744-45
(1967)).
16
No. 2012AP544-W
¶30 In that case, Michael Parent (Parent) pled guilty to
several charges, and the circuit court ordered a PSI. Id., ¶8.
The circuit court sentenced Parent to a term of imprisonment
consisting of 11 years of initial confinement and 11 years of
extended supervision. Id. Parent's counsel filed a no-merit
notice of appeal and requested a copy of Parent's PSI. Id., ¶9.
The circuit court denied Parent access to his PSI, stating that
Parent was trying to "draw attention to himself" and that
providing him with a copy of the PSI would "only encourage Mr.
Parent to raise issues that are without merit." Id., ¶11.
Parent appealed, and the court of appeals denied Parent's motion
to access his PSI. Id., ¶12. Parent's appellate counsel
petitioned this court for a supervisory writ, which we granted.
Id., ¶13. We remanded to the court of appeals, and the court of
appeals certified the case back to this court:
[T]he court of appeals certified the case to this
court to clarify the procedure and factors to be
considered when deciding whether a defendant should
receive a copy of a PSI report to facilitate his or
her response to a no-merit report, and to decide
whether motions filed by the State seeking access to a
PSI report and disclosure of its contents in the
State's brief should be filed in the court of appeals
or in [the] circuit court.
Id., ¶14.
¶31 At the time Parent's counsel requested a copy of the
PSI, Wis. Stat. § 972.15(4m) did not exist. Thus, the statute
required Parent's counsel to obtain circuit court authorization
to access Parent's PSI. See Wis. Stat. § 972.15(4) (2003-04).
In the course of the litigation, the legislature added subsec.
17
No. 2012AP544-W
(4m) to § 972.15, which rendered moot the question of whether
Parent and Parent's counsel were entitled to view and retain
respectively, a copy of the PSI. See 2005 Wis. Act 311, § 2.
¶32 When reviewing the newly created Wis. Stat.
§ 972.15(4m), the court concluded that a defendant is entitled
to view the PSI and the circuit court may not altogether deny
access to the PSI. Parent, 298 Wis. 2d 63, ¶34. This right is
subject to the circuit court's discretion under § 972.15(3) to
conceal the identity of any person who provided information in
the PSI report and the requirement that the defendant keep the
information in the PSI confidential. Id. For the purposes of
§ 972.15(4m), Parent concluded that a defendant in a no-merit
appeal is more like an "unrepresented" defendant than a
represented defendant. Id., ¶41. Under § 972.15(4m), an
unrepresented defendant "is entitled to view the [PSI] but may
not keep a copy of the report." Id., ¶43.
¶33 The next question this court considered was whether
the State's motion seeking access to and disclosure of the PSI
should go to the circuit court or the court of appeals. Id.,
¶47. The framing of this issue presupposed that the attorney
general did not already have access to the PSI, which is logical
in a no-merit case where (1) subsec. (4m) was not in existence
during the underlying criminal case, so the State could not
"have and keep a copy" of the PSI, and (2) the State may not
become involved unless and until the court of appeals determines
that the defendant's appeal has merit. See Wis. Stat.
§ (Rule) 809.32 (procedure for no-merit reports); Tillman, 281
18
No. 2012AP544-W
Wis. 2d 157, ¶17; Cleghorn v. State, 55 Wis. 2d 466, 472, 198
N.W.2d 577 (1972) (stating that if the appeals court finds merit
in the defendant's claim, it orders that the case "proceed with
the appeal"). Parent determined that for the purposes of a no-
merit appeal, the attorney general "should submit any requests
to obtain a copy of the PSI report and to disclose its contents
in the State's brief to the circuit court." 298 Wis. 2d 63,
¶49.
¶34 In Parent, neither party had access to the PSI. The
question presented in Parent was how the parties to a no-merit
appeal can access the PSI. Id., ¶14. In this case, there is no
question of access; the plain language of Wis. Stat.
§ 972.15(4m) authorizes the defendant's attorney and the
district attorney to "have and keep a copy" of the PSI. The
question presented in this case is whether parties who are
already authorized by § 972.15(4m) "to have and keep a copy" of
the PSI must obtain court permission to use information
contained in the PSI in their appellate briefs. Therefore,
Parent is not controlling on the issue now before this court
because it concerned access to the PSI in a no-merit appeal. We
conclude that the rule of Parent is limited to no-merit appeals.
¶35 As a practical matter, even if counsel were required
to engage in motion practice before the circuit court or the
court of appeals seeking permission to reference information
contained in a PSI, that motion would provide little, if any,
opportunity for the court to evaluate the confidentiality of the
information or the sensitive contents contained in a PSI. The
19
No. 2012AP544-W
motion itself is typically quite broad, and requests permission,
as Buchanan's counsel did here, "to cite the portions of the PSI
relevant to the defendant's appeal." The court's response is
likewise quite broad, as it was here, giving permission to
"quote sparingly" from the PSI. By necessity, the attorney's
motion and the court's response must lack detail, otherwise the
sensitive or confidential information would become a public
record through the motion and the decision of the court. Thus,
requiring court approval provides little, if any, guarantee that
information will be treated any differently than if no motion
were required.
2. Confidentiality
¶36 We conclude that parties who are entitled "to have and
keep a copy" of a PSI pursuant to Wis. Stat. § 972.15(4m) need
not ask any court's permission to reference a PSI in an
appellate brief. Parties may reference information from the PSI
that does not reveal confidential information and that is
relevant to the appeal.9 We urge counsel to be abundantly
cautious when deciding whether it is necessary to cite sensitive
information and when choosing how to cite such content.
9
Our holding applies only to parties who are entitled "to
have and keep a copy" of the PSI pursuant to Wis. Stat.
§ 972.15(4m) and reserves for another day the procedure a pro se
defendant should follow, as those facts are not before us. Of
note, however, is that a defendant is entitled to view the PSI,
but is not entitled "to have and keep a copy." Any information
from a PSI that a pro se defendant includes in an appellate
brief will be from memory, which as a practical matter, likely
limits the amount of detailed information the defendant could
include.
20
No. 2012AP544-W
¶37 The SPD and the State acknowledge that their ability
to use the PSI is subject to the requirement that the PSI be
kept confidential, see Wis. Stat. § 972.15(4) and (4m). They
argue that this requirement is met by compliance with Wis. Stat.
§ (Rule) 809.81(8) (confidential documents "shall refer to
individuals only by their first name and the first initial of
their last name").
¶38 The court of appeals concluded that confidentiality
for the purposes of Wis. Stat. § 972.15 is broader than using a
person's first name and the first initial of their last name.
Instead, the court of appeals reasoned that the drafting
comments to § 972.15 suggest that confidentiality means limiting
access to the PSI and requiring circuit court permission to
access the PSI after sentencing.
¶39 We agree with the SPD and the State that the
confidentiality requirement of Wis. Stat. § 972.15 requires
compliance with Wis. Stat. § (Rule) 809.81(8) ("Every notice of
appeal or other document that is filed in the court and that is
required by law to be confidential shall refer to individuals
only by their first name and the first initial of their last
name."). See also Wis. Stat. § (Rule) 809.19(1)(g) and (2)
(requiring reference to individuals by first name and last
initial in appellate briefs when record is confidential).
Parties should be mindful that a PSI may also contain
information that must be kept confidential for other reasons,
for example medical information, see Wis. Stat. § 146.82 ("All
patient health care records shall remain confidential"),
21
No. 2012AP544-W
information from child welfare and termination of parental
rights (TPR) proceedings, see Wis. Stat. §§ 48.78,
48.396(2)(dr), and information from juvenile delinquency
proceedings, see Wis. Stat. §§ 938.78, 938.396(2g)(dr). These
examples are by no means exhaustive regarding the treatment or
forms of confidential information that may be contained in a
PSI. In addition, because of the sensitive nature of
information contained in a PSI, counsel should be prudent when
using any information from a PSI regardless of whether they are
statutorily-required to so measure their actions.
¶40 Our conclusion that confidentiality under Wis. Stat.
§ 972.15 requires compliance with Wis. Stat. § (Rule) 809.81 is
consistent with how confidentiality is interpreted in other
areas of the law, for example TPR and juvenile cases. Under
Wis. Stat. §§ 48.78 and 938.78, there is a general rule, subject
to exceptions, that documents pertaining to individuals
receiving care or in custody under Chapters 48 or 938 are
confidential. In appellate briefs, attorneys maintain
confidentiality by compliance with Wis. Stat.
§ (Rule) 809.19(1):
Section 809.19(1)(g) requires the appellant's
brief to refer to 'an individual by first name and
last initial rather than by his or her full name when
the record is required by law to be confidential.'
Confidential cases generally involve juveniles (e.g.
cases waiving juveniles into adult court or
terminating parental rights). See Wis. Stat.
§§ 48.78, 938.78.
22
No. 2012AP544-W
Michael S. Heffernan, Appellate Practice and Procedure in
Wisconsin, Ch. 11, at 16 (5th ed. 2011). Our interpretation of
confidentiality in Wis. Stat. § 972.15(4) and (4m) is consistent
with the confidentiality rules for TPR and juvenile cases.
¶41 We disagree with the court of appeals' determination
that a PSI is confidential because it is not a public record and
access to the PSI is limited. A PSI is not a public document.
However, that alone does not end the analysis. The information
contained in a PSI may be critical to adequately forward or
respond to an issue on appeal. Such a document may serve a
legitimate purpose and be admissible in litigation, yet not be a
public record. While a PSI may not be a public record and may
contain confidential and sensitive information, that alone
cannot render it unreachable in the context of appellate
litigation. In fact, information in the PSI may be seminal to
the appeal. The court of appeals determined that the official
23
No. 2012AP544-W
comments to the statute support its interpretation.10 We
disagree. Although those comments mention specific
authorization to access the PSI, the comments were written
before Wis. Stat. § 972.15(4m) was in existence. The statute
answers the question of access; § 972.15(4m) allows the
defendant's attorney and the State "to have and keep a copy" of
the PSI. We find further support for our interpretation——that
confidentiality means redacting information rather than limiting
access——from analogous case law prioritizing access to documents
for parties to the case over confidentiality. The
confidentiality of a record does not always trump access to and
use of the record.11
10
The official comment to Wis. Stat. § 972.15(4) states:
"The information in such reports is often unverified and would
in many cases, even if true, cause irreparable harm to
informants or the defendant. The information may, of course,
upon specific authorization of the court, be made available to
any agencies, courts or individuals which have a legitimate need
for it." See § 63, ch. 255, Laws of 1969. The same Committee
Note stated that the confidentiality requirement of § 972.15 was
consistent with ABA standards "that presentence reports should
not be public records." Id.; Am. Bar Ass'n Project on Minimum
Standards for Criminal Justice, Standards Relating to Sentencing
Alternatives and Procedures (Approved Draft, 1968), ABA Advisory
Committee on Sentencing and Review, § 4.3, at 210-11 (stating
that the PSI should not be a public record, but should be
available to the parties). There is a distinction between a
document being a public record and a document being available
for litigation.
11
For example, the court of appeals has held that Wis.
Stat. § 967.06, allowing a public defender to access "any
transcript or court record," gave the public defender access to
a juvenile court record despite the rule in Wis. Stat. § 48.396,
which provided that the record in juvenile cases is closed to
anyone without judicial permission. State ex rel. S.M.O. v.
Resheske, 110 Wis. 2d 447, 454, 329 N.W.2d 275 (Ct. App. 1982).
24
No. 2012AP544-W
¶42 To be clear, our decision does not grant parties
unfettered discretion to reference any and all portions of a
PSI; the parties may reference information from a PSI only if it
is relevant to an issue on appeal. See State v. Comstock, 168
Wis. 2d 915, 923, 485 N.W.2d 354 (1992) ("[T]he dissent admits
that it recites numerous facts drawn from the presentence
investigation report. We disapprove of this practice.")
(citation omitted); State v. McCallum, 208 Wis. 2d 463, 480 n.3,
561 N.W.2d 707 (1997) ("McCallum's motion to strike references
to the defendant's presentence investigation report from the
State's brief is granted." (citing Comstock, 168 Wis. 2d at 923-
25)). This test is narrower than the general test of relevancy
under Wis. Stat. § 904.01 because information may be relevant to
the circuit court proceedings but not relevant to an issue on
appeal, and therefore inappropriate to cite in an appellate
brief.
¶43 We caution practitioners to exercise sound discretion
when citing information from a PSI. A PSI may contain very
sensitive information. See Wis. Admin. Code §§ DOC 328.27,
328.29 (Dec. 2006) (stating that PSI should include criminal
record, correctional institutional record, victim's statement,
family information, personal history, and identity of sources of
information). Indeed, with electronic access to filed briefs,
counsel must be even more vigilant with respect to how best to
cite sensitive information. Clearly it is much more difficult
to remove information from the public domain once it has been
included in an appellate brief. Counsel and circuit courts must
25
No. 2012AP544-W
be even more aware of the responsibility to redact a PSI at the
trial court level before the case gets to the appellate level.
The circuit court has the significant power to "conceal the
identity of any person who provided information" in the PSI.
Wis. Stat. § 972.15(3). Certainly, if appellate counsel, in the
process of writing an appellate brief, is unsure whether
information from a PSI can be included, he or she can ask the
court of appeals for guidance or can file the brief under seal12
until the court of appeals can decide whether the brief complies
with rules of confidentiality. Opposing counsel could also move
to strike inappropriate parts of the appellate brief. See
McCallum, 208 Wis. 2d at 480 n.3.13
12
Court records are open for public inspection. See Wis.
Stat. § 59.20(3) (Every "clerk of the circuit court . . . shall
open to the examination of any person all books and papers
required to be kept in his or her office"). "Public records may
be sealed (1) if a statute authorizes the sealing of otherwise
public records, (2) if disclosure infringes a constitutional
right or (3) if the administration of justice requires it."
City of Madison v. Appeals Comm. of the Madison Human Servs.
Comm'n, 122 Wis. 2d 488, 491, 361 N.W.2d 734 (Ct. App. 1984)
(citing State ex rel. Bilder v. Twp. of Delavan, 112
Wis. 2d 539, 554-56, 334 N.W.2d 252 (1983)).
13
The dissent's proposed procedure could provide further
guidance to parties and lower courts. The dissent's proposed
procedure, however, originates from legislation that is
currently before the Wisconsin Legislative Reference Bureau.
The proposed procedure is not otherwise grounded on any current
statute. The legislature has provided rules and procedures that
are applicable to the dissemination of PSIs in Wis. Stat.
§ 972.15, and it is within the province of the legislature to
determine if procedural change is appropriate. Apparently that
opportunity may occur in the near future. The majority declines
to usurp the role of the legislature by appearing to enact
legislation through a court opinion.
26
No. 2012AP544-W
IV. CONCLUSION
¶44 We conclude that the SPD has not met the requirements
for issuance of a supervisory writ. However, pursuant to our
superintending and administrative authority, we conclude that in
a merit appeal, parties who are entitled "to have and keep a
copy" of a PSI pursuant to Wis. Stat. § 972.15(4m) need not ask
any court's permission to reference a PSI in an appellate brief.
Parties may reference information from the PSI that does not
reveal confidential information and that is relevant to the
appeal. We urge counsel to be abundantly cautious when deciding
whether it is necessary to cite sensitive information and when
choosing how to cite such content.
By the Court.—Rights declared; relief granted, case
proceeds accordingly at the court of appeals.
27
No. 2012AP544-W
¶45 ANN WALSH BRADLEY, J. (dissenting). I agree with
the majority that the requirements for a supervisory writ are
not met. I also agree with the majority that it is appropriate
to employ our superintending and administrative powers here.
¶46 I part ways with the majority, however, because I
conclude that we should employ those powers in a manner that
establishes a simple rule that provides guidance to courts,
parties, and counsel and that protects from harm those who
provide information in the presentence investigation report
(PSI). Because the majority's approach appears at odds with the
words of the statute and provides neither adequate guidance nor
protection, I respectfully dissent.
I
¶47 Having determined that it will not grant a supervisory
writ but will instead exercise the court's superintending and
administrative powers, the majority turns to interpreting Wis.
Stat. § 972.15. It correctly notes that a defendant has a due
process right to be sentenced upon accurate information, a right
to disclosure of all information in the PSI, and a right to
challenge any statement in the PSI that the defendant believes
to be inaccurate or incomplete. Majority op., ¶20.
1
No. 2012AP544-W
¶48 The majority concludes that parties1 are not required
to get permission from any court before referencing a PSI in an
appellate brief. It opines that there is "no quantifiable
benefit" if parties are required to request permission of the
circuit court to reference a PSI. Id., ¶¶25, 28. It likewise
eschews any benefit from requiring the parties to obtain
permission from the court of appeals: "requiring court approval
provides little, if any, guarantees that information will be
treated any differently than if no motion were required." Id.,
¶35.
¶49 Instead of requiring permission, the majority directs
that parties may "reference information from the PSI that does
not reveal confidential information and that is relevant to the
appeal." Id., ¶36. It provides examples of what it calls
"confidential information," listing medical information,
information from child welfare and termination of parental
rights proceedings, and information from juvenile delinquency
proceedings. Id., ¶39.
¶50 Under the majority's interpretation, nothing more is
required than what is already mandated by those other statutory
provisions that govern "confidential information." Id., ¶36.
1
The term "parties" in the majority's analysis appears to
refer to defense counsel and counsel for the State. See
majority op., ¶20. However, it is the State and the defendant
that normally are considered to be the parties in a criminal
action——not defense counsel and counsel for the State. The
appearance that the majority means counsel when it uses the term
"parties" arises from its reference to "have and keep."
Wisconsin Stat. § 972.15(4m) allows the district attorney and
the defendant's attorney to have and keep a copy of the PSI. A
defendant is allowed only to view the PSI but not keep a copy.
2
No. 2012AP544-W
In the event that there is uncertainty as to whether the
information complies with those confidentiality statutes, it
merely suggests that counsel "ask the court of appeals for
guidance." Id., ¶43. It additionally suggests that counsel
should consider "fil[ing] the brief under seal" until the court
of appeals can decide if the information fits its definition of
"confidential information." Id. Finally, the majority leaves
the decision of whether to disclose "sensitive" information in a
PSI to the "prudent" and "sound discretion" of counsel. Id.,
¶¶39, 43.
II
¶51 Our job is to interpret and apply the statutes as they
are written by the legislature. We should not replace a clear
legislative mandate with our own version of the statute.
¶52 The text of Wis. Stat. § 972.15(4) (2009-10)2 states
that "after sentencing the presentence investigation report
shall be confidential." Instead of following a clear
legislative mandate, the majority turns the statutory language
on its head and treats a PSI not as a confidential document but
as a non-confidential document that may contain certain pieces
of otherwise confidential information. See majority op., ¶¶19,
29, 36, 39, 40, 43.
¶53 The majority's contradictory interpretation of Wis.
Stat. § 972.15(4) appears to conflict with this court's prior
application of the statute. In State v. Comstock, 168 Wis. 2d
2All subsequent statutory references are to the 2009-10
version of the Wisconsin Statutes, unless otherwise indicated.
3
No. 2012AP544-W
915, 485 N.W.2d 354 (1992), the majority of this court chided a
dissenting opinion for inappropriately citing certain facts from
a PSI. The court quoted Wis. Stat. § 972.15(4) and its
statement that a PSI is confidential. Id. at 923-25. Nowhere
in the Comstock court's discussion of a PSI did it imply that
the PSI as a whole is not a confidential document.3
¶54 Furthermore, the majority provides inadequate guidance
to courts, parties, and counsel. Although the majority provides
a limited list of information made confidential by other
statutes, it provides no guidance regarding the volumes of other
information that may be included in a PSI.
¶55 Additionally, the majority's analysis appears narrowly
tailored to apply only to parties who are represented by
counsel, although the statute covers non-represented defendants.
The holding framed by the majority provides that "parties who
are entitled 'to have and keep' a copy of a PSI pursuant to Wis.
Stat. § 972.15(4m) need not ask any court's permission to
reference a PSI in an appellate brief." Majority op., ¶3.
3
This court has treated an entire PSI as confidential on
other occasions. In addition to Comstock, the court discussed
the meaning of the term "confidential" as it is used in Wis.
Stat. § 972.15(4) in State v. Parent, 2006 WI 132, ¶26, 298 Wis.
2d 63, 725 N.W.2d 915. In that case, the court determined that
the defendant must keep "the information in the report"——not
some information in the report——confidential in the context of a
no merit appeal. Id., ¶50. Similarly, this court addressed
whether the confidentiality requirement in Wis. Stat.
§ 972.15(4) is extended to sentencing memoranda in State v.
Greve, 2004 WI 69, 272 Wis. 2d 444, 681 N.W.2d 479. The court
in Greve also appears to have treated the entire PSI as
confidential. Id., ¶17.
4
No. 2012AP544-W
Wisconsin Stat. § 972.15(4m) allows counsel to "have and keep a
copy" of the PSI.
¶56 Defendants, however, may not "have and keep" a copy of
the PSI. They may only "view" it. Wis. Stat. § 972.15(4m);
State v. Parent, 2006 WI 132, ¶50, 298 Wis. 2d 63, 725 N.W.2d
915. Given the majority's narrowly-framed holding, it is
unclear what a pro se defendant is to do on appeal. Is a pro se
defendant likewise supposed to know what confidential
information may or may not be used in an appellate brief? Is
the decision of whether to use sensitive information in the
brief left to the "prudent" and "sound discretion" of the pro se
defendant?
¶57 Because the majority fails to set forth any standards
for determining what "sensitive" information should be
permissible to use in an appellate brief, counsel (and perhaps
pro se defendants) have no principled manner in which they may
evaluate whether information in a PSI should be used other than
their "prudent" and "sound discretion." What happens if their
"prudent" and "sound discretion" is overshadowed by their
zealous advocacy? What are the consequences for the parties or
counsel?
¶58 The majority's inadequate guidance on these questions
may produce negative consequences for those who have provided
information in the PSI and provide inadequate protection from
harm. A PSI commonly includes information that would not fall
within the majority's list of "confidential" information. For
example, the victim's statement often reveals intimate details
5
No. 2012AP544-W
of the social, economic, physical, and psychological effects of
the crime. Furthermore, the family information contained in a
PSI could set forth what would otherwise be considered private
family matters, detailing the lives of individuals whose sole
involvement with the crime is that they are related to the
offender.
¶59 Such information does not appear to be protected from
disclosure under the majority's approach. Majority op., ¶39.
Individuals may be held up to ridicule as a result of
inappropriate use of information in a PSI. Additionally, the
disclosure of such information may put an individual's life or
health in danger, creating safety issues.
¶60 At first blush it may appear that relevancy provides a
meaningful limitation, but the broad definition of relevancy
provides inadequate protection. Relevant evidence is evidence
that has "any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable
or less probable than it would be without the evidence." Wis.
Stat. § 904.01; State v. Payano, 2009 WI 86, ¶68, 320 Wis. 2d
348, 768 N.W.2d 832.4 The relevancy requirement offers no real
safeguard for the information contained in a PSI that does not
fall within the majority's list of "confidential" information.
4
The majority characterizes its relevancy test as a
"narrower" inquiry than that which is set forth in Wis. Stat.
§ 904.01 because the issues in a case are often narrowed on
appeal. Majority op., ¶42. Nevertheless, its standard for
relevancy appears to be the same standard as the one defined in
the relevancy statute, Wis. Stat. § 904.01.
6
No. 2012AP544-W
¶61 The majority's inadequate guidance and protection
leads to a nebulous procedure. This court should establish a
simple procedure that clearly provides guidance and that
adequately protects those who provide information in a PSI.
III
¶62 Instead of the majority's approach to statutory
construction, I would interpret the statute to establish a
simple procedure that provides clear guidance to courts,
parties, and counsel and protects from harm those who provide
information in the PSI.
1. The entire PSI is confidential by statute.
¶63 As I see it, the entire PSI is confidential by
statute. Wisconsin Stat. § 972.15(4) provides that "after
sentencing the presentence investigation report shall be
confidential and shall not be made available to any person
except upon specific authorization of the court." It does not
limit confidentiality of the PSI to items that fit under matters
that are confidential as defined by other statutes.
¶64 Although this court has not previously defined
"confidential" as it is used in the PSI statute, it has set
forth general guidelines for what the term "confidential" means
when it is used in a statute. See, e.g., Sands v. Whitnall
School Dist., 2008 WI 89, ¶32, 312 Wis. 2d 1, 754 N.W.2d 439.
Confidential data is data that is "meant to be kept secret."
Id., ¶32 (quoting Custodian of Records for LTSB v. State, 2004
WI 65, ¶15, 272 Wis. 2d 208, 680 N.W.2d 792).
7
No. 2012AP544-W
¶65 The term "confidential" generally contemplates that
confidential documents will be limited in the scope of their
disclosure. See Custodian of Records for LTSB, 272 Wis. 2d 208,
¶15. Similarly, because the statutory language provides that
the PSI is confidential, the disclosure of its contents must be
carefully circumscribed.
2. To the extent that information in the PSI has already
been made public in the circuit court at a sentencing or
post sentencing hearing, the information in a transcript
from that hearing may be used in an appellate brief.
¶66 Although the entire PSI is confidential, the
confidentiality requirement set forth in Wis. Stat. § 972.15(4)
must sometimes yield to the defendant's due process rights.5 One
circumstance where the confidentiality requirement must yield is
when the PSI has already been made public in the circuit court.
¶67 Any information in a PSI that is made public by the
circuit court at a sentencing or post sentencing hearing is
already public information and may be used in an appellate
brief. For example, a circuit court may refer to information in
a PSI when it is explaining on the record how the sentence's
component parts promote the sentencing objectives. State v.
Gallion, 2004 WI 42, ¶¶47, 50, 270 Wis. 2d 535, 678 N.W.2d 197.
5
A defendant's due process rights include a right to be
sentenced upon accurate information, a right to disclosure of
the information in the PSI, and a right to challenge any
statement in the PSI that the defendant believes to be
inaccurate or incomplete. Majority op., ¶20 (citations
omitted).
8
No. 2012AP544-W
The transcript from the hearing containing statements
referencing the PSI may be used in an appellate brief.6
6
This is consistent with part of a proposal from the
Wisconsin Judicial Council that would change the way PSIs are
prepared, used, distributed, and kept as records. The Wisconsin
Judicial Council's principal statutory responsibilities are to
study and make recommendations relating to the pleading,
practices, procedures, organization, jurisdiction, and methods
of administration of Wisconsin courts. Wis. Stat. § 758.13.
The Wisconsin Judicial Council is a 21-member body
representing a broad cross-section of interests. A member of
the Wisconsin Supreme Court sits on the Wisconsin Judicial
Council. Currently serving on the Judicial Council is Justice
Patience Roggensack. Other members of the Judicial Council
include a court of appeals judge, four circuit court judges, one
district attorney, three members of the state bar, two citizen
members, and all of the following individuals or their
designees: the Director of State Courts, the chairs of the
Senate and Assembly standing committees with jurisdiction over
judicial affairs, the Attorney General, the chief of the
Legislative Reference Bureau, the deans of the law schools of
the University of Wisconsin and Marquette University, the State
Public Defender, and the president-elect of the state bar. Id.;
Wisconsin Judicial Council,
http://www.wicourts.gov/courts/committees/judicialcouncil/index.
htm (last visited Apr. 1, 2013).
In accordance with its statutory duties, the Judicial
Council widely distributed for analysis its proposal that would
change the procedures relating to PSIs. See Minutes of the
Meeting of the Wisconsin Judicial Council (Jan. 18, 2013),
available at
http://www.wicourts.gov/courts/committees/judicialcouncil/docs/m
inutes0113.pdf (last visited Apr. 1, 2013) (discussing the
circulation of a PSI proposal for fiscal estimates and approving
a request to release copies of fiscal estimates before
introduction of a PSI bill). Among the entities solicited for
comment was the Legislative Committee of the Wisconsin Judicial
Conference, chaired by Chief Justice Shirley Abrahamson. The
proposal was distributed by Chief Justice Abrahamson to this
court.
9
No. 2012AP544-W
¶68 However, because the PSI is confidential, Wis. Stat.
§ 809.81(8) requires that parties and counsel shall refer to
individuals named in the PSI "only by their first name and the
first initial of their last name." Even where a party or
counsel may use information in a PSI, the statute mandates that
the party or counsel refer to only the first name and first
initial of the last name of the individuals named in the PSI.
3. Court permission must be obtained for any information not
previously made public at the circuit court.
¶69 Sometimes a party or counsel may determine that it is
necessary to use information in a PSI that is not a part of the
public record. Under those circumstances, the party or counsel
should be required to get court permission before using the
information.
4. As a practical matter, the location of the record should
dictate which court to ask.
¶70 In determining which court to move for permission to
use information in a PSI, parties and counsel should be guided
by the practical reality of where the record is located. When
the record is at the circuit court prior to the initiation of an
appeal, the party or counsel should request permission to use
information in the PSI from the circuit court. Conversely, when
the appeal is initiated and the record is already with the court
All meetings of the Wisconsin Judicial Council and its
committees are open to the public. Wisconsin Judicial Council,
http://www.wicourts.gov/courts/committees/judicialcouncil/docs/a
genda0213.pdf (last visited Apr. 1, 2013).
10
No. 2012AP544-W
of appeals, parties or counsel should request permission to use
information in the PSI from the court of appeals.
¶71 In determining whether to grant permission to use
information in a PSI under the statute, courts must be
constantly mindful of the due process rights of the defendant.
(See, e.g., a defendant has a due process right to be sentenced
upon accurate information. State v. Tiepelman, 2006 WI 66, ¶9,
291 Wis. 2d 179, 717 N.W.2d 1.) Courts should also consider the
nature of the information that would be exposed to public
scrutiny. Some information in a PSI is separately made
confidential by other statutes and those statutes may require
special procedures.7 Courts must employ those additional
procedures before authorizing the citation of information that
is made confidential by other statutes.
¶72 Additionally, courts should be wary about authorizing
the citation of information that will hold an individual up to
ridicule, endanger the safety of persons named in the PSI, or is
not needed to advance the claims raised on appeal. Individuals
who provide information in the PSI should be provided adequate
protection from harm.
¶73 The above interpretation of the statute is a simple
procedure that (1) provides guidance to courts, parties, and
counsel; (2) protects those who provide information in a PSI;
7
See, e.g., Wis. Stat. §§ 146.82 (governing patient health
care records), 48.78 (governing agency child welfare records),
48.396 (governing law enforcement officers' records of
children), 938.78 (governing agency records of individuals in
the care or legal custody of the agency).
11
No. 2012AP544-W
and (3) is consistent with the statutory directive of
confidentiality. Unfortunately, the majority fails in all three
respects. Accordingly, I respectfully dissent.
¶74 I am authorized to state that CHIEF JUSTICE SHIRLEY S.
ABRAHAMSON and JUSTICE DAVID T. PROSSER, JR. join this dissent.
12