State v. Patrick J. Lynch

2016 WI 66
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2680-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Patrick J. Lynch,
Defendant-Respondent.
REVIEW OF A DECISION BY THE COURT OF APPEALS
(Reported at 359 Wis. 2d 482, 859 N.W.2d 125)
(Ct. App. 2014 – Published)
PDC No: 2015 WI App 2
OPINION FILED: July 13, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 12, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dodge
JUDGE: Andrew P. Bissonette
JUSTICES:
CONCURRED: ROGGENSACK, C. J. concurs (Opinion filed).
CONCURRED/DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. concur
and dissent (Co-authored opinion filed).
DISSENTED: PROSSER, J. dissents (Opinion filed).
ZIEGLER, J. dissents (Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, the cause was
argued by Marguerite M. Moeller, assistant attorney general,
with whom on the briefs was Brad D. Schimel, attorney general.
For the defendant-respondent, there was a brief by Robert
R. Henak, and the Henak Law Office, S.C., Milwaukee, WI, with
whom on the brief was Christopher T. Van Wagner and Christopher
T. Van Wagner S.C., Madison, WI. Oral argument by Robert R.
Henak.
2016 WI 66
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2680-CR
(L.C. No. 2010CF365)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Petitioner, FILED
v. JUL 13, 2016
Patrick J. Lynch, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. As a result
of a divided court, the law remains as the court of appeals has
articulated it.1
1
While five Justices would reverse the decision of the
court of appeals——in whole or in part——no more than three
Justices can agree on the same rationale or result.
Consequently, the law remains as the court of appeals has
articulated it. First, Justice Gableman, joined by Chief Justice
Roggensack and Justice R.G. Bradley, would overturn State v.
Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993)
modified by State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646
N.W.2d 298 (hereinafter Shiffra/Green). Second, Justice
Abrahamson and Justice A.W. Bradley would not overturn
Shiffra/Green but would interpret Shiffra to allow for
additional remedies, including release of the privileged records
pursuant to Wis. Stat. § 146.82(2)(a)4. Third, Justice Prosser
would not overturn Shiffra/Green, and though he would consider
additional remedies, he would not permit a circuit court to
compel release of the complainant's privileged records pursuant
(continued)
No. 2011AP2680-CR
¶1 MICHAEL J. GABLEMAN, J. This is a review of a
published decision of the court of appeals2 that affirmed the
Dodge County Circuit Court's3 findings that (1) Patrick Lynch
("Lynch"), the defendant, made an adequate showing for an in
camera review of the complainant's privileged mental health
treatment records and (2) the complainant's testimony must be
excluded at trial because the complainant refused to disclose
her privileged mental health treatment records.
¶2 This case requires us to reexamine State v. Shiffra,
175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993) modified by
State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298
(hereinafter Shiffra/Green). Shiffra/Green established a process
to Wis. Stat. § 146.82(2)(a)4. Finally, Justice Ziegler would
not overturn Shiffra/Green and interprets Shiffra to allow for a
single remedy (preclusion of the privilege-holder's testimony).
In this case, "no [majority of] justices reach agreement to
either affirm, reverse, or modify the decision of the court of
appeals consistent with precedent. Consequently, the court of
appeals decision remains the law of the case." State v. Johnson,
2014 WI 16, ¶2, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam)
(Johnson II) (citing Phillips v. U.S. Bank Nat'l Ass'n, 2010 WI
131, ¶¶1-2, 329 Wis. 2d 639, 791 N.W.2d 190)).
We note in passing that Justice Abrahamson and Justice A.W.
Bradley attempt to divert attention from the merits of this
important case. Lest we be incorrectly perceived as accepting
their invitation to lose sight of the forest for the trees, here
is the bottom line: "the court of appeals decision remains the
law of the case." Johnson II, 353 Wis. 2d 119, ¶2 (per curiam).
2
State v. Lynch, 2015 WI App 2, 359 Wis. 2d 482, 859
N.W.2d 125.
3
The Honorable Andrew P. Bissonnette presided.
2
No. 2011AP2680-CR
under which a criminal defendant in Wisconsin could obtain an in
camera review of a person's privileged4 mental health treatment
records. Under Shiffa/Green, a defendant can acquire a
complainant's privileged mental health treatment records when he5
demonstrates "a reasonable likelihood that the records contain
relevant information necessary to a determination of guilt or
innocence . . . ."6 Green, 253 Wis. 2d 356, ¶19.
¶3 In this case, Lynch filed a pretrial motion pursuant
to Shiffra/Green, seeking an in camera inspection of "all
psychiatric, psychological, counseling, therapy and clinical
records" of the complainant for the treatment she received
during the time period 1993-2011. The circuit court granted
Lynch's motion for in camera review of the complainant's
privileged mental health treatment records and ordered the
4
Wisconsin's privilege statute provides, "A patient has a
privilege to refuse to disclose and to prevent any other person
from disclosing confidential communications made or information
obtained or disseminated for purposes of diagnosis or treatment
of the patient's physical, mental, or emotional
condition . . . ." Wis. Stat. § 905.04(2).
5
Throughout this opinion, we use the pronoun "he" when
referring to a defendant because the defendant, Lynch, is a
male.
6
State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d
298, states the Shiffra/Green test as follows: "[T]he standard
to obtain an in camera review requires a defendant to set forth,
in good faith, a specific factual basis demonstrating a
reasonable likelihood that the records contain relevant
information necessary to a determination of guilt or innocence
and is not merely cumulative to other evidence available to the
defendant." Id., ¶19.
3
 No. 2011AP2680-CR
complainant to sign a release of records. Further, the court
informed the complainant that if she refused to turn over her
privileged mental health treatment records, her testimony would
be "barred at trial." The complainant refused to give up her
privileged mental health treatment records "[u]nless and until"
the circuit court's determination was reviewed by another court.
As a result, the circuit court barred the complainant from
testifying at trial. The State appealed, and the court of
appeals affirmed the circuit court's order barring the
complainant from testifying at trial. The State appealed.
¶4 The State makes three arguments on appeal. First, the
State argues that we should overrule Shiffra/Green because it
originates from a serious misinterpretation of Pennsylvania v.
Ritchie, 480 U.S. 39 (1987). Second, the State argues that, if
Shiffra/Green remains, we should clarify that witness preclusion
(barring a complainant from testifying at trial) is not the only
remedy available to the circuit court when a complainant refuses
to waive her privilege. Third, the State argues that a circuit
court should be able to use Wis. Stat. § 146.82(2)(a)4. (2013-
14)7 to require production of the privileged mental heath
7
Wisconsin Stat. § 146.82(2)(a)4. (2013-14) allows a
patient's confidential health care records to be "released upon
request without informed consent" "under a lawful order of a
court of record."
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated. Although the
acts giving rise to the alleged crimes in this case date back
many years, we cite to the most current version of the statutes
as no pertinent changes have been made.
4
No. 2011AP2680-CR
treatment records even when the complainant refuses to consent
to release.
¶5 Accordingly, three issues are presented for our
review.8 The first is whether we should overrule Shiffra/Green.
The second is whether witness preclusion is the only remedy
available to the circuit court when a complainant refuses to
waive her privilege. The third is whether a circuit court may
use Wis. Stat. § 146.82(2)(a)4. to require production of the
privileged mental heath treatment records when the complainant
refuses to consent to release.
¶6 These issues, in particular the first and second
issues, have divided this court for a number of years. See State
v. Johnson, 2013 WI 59, 348 Wis. 2d 450, 832 N.W.2d 609 (per
curiam) (Johnson I), reconsideration granted, 2014 WI 16, 353
8
The State's petition for review framed the three issues as
follows:
1. Do defendants have a constitutional right to
disclosure of privately held privileged records? If
they do, what is the basis for the constitutional
right?
2. After determining that Lynch had made the showing
required by Shiffra/Green, could the circuit court
have invoked Wis. Stat. § 146.82(2)(a)4. to obtain
[the complainant's] records without her consent?
3. Assuming a circuit court cannot obtain a witness's
privileged records without her consent pursuant to
Wis. Stat. § 146.82(2)(a)4., is witness preclusion
always required when a defendant satisfies
Shiffra/Green but the victim withholds consent to an
in camera review of her privileged records?
5
No. 2011AP2680-CR
Wis. 2d 119, 846 N.W.2d 1 (per curiam) (Johnson II). These
issues continue to divide this court.
¶7 Justice Gableman, joined by Chief Justice Roggensack
and Justice R.G. Bradley, would overturn Shiffra/Green. Our
reasoning is outlined in this lead opinion.9 Justice Abrahamson
and Justice A.W. Bradley would not overturn Shiffra/Green but
would interpret Shiffra to allow for additional remedies,
including release of the privileged records pursuant to Wis.
Stat. § 146.82(2)(a)4. Justice Prosser would not overturn
Shiffra/Green, and though he would consider additional remedies,
he would not permit a circuit court to compel release of the
complainant's privileged records pursuant to § 146.82(2)(a)4.
Finally, Justice Ziegler would not overturn Shiffra/Green and
interprets Shiffra to allow for a single remedy (preclusion of
the privilege-holder's testimony).
¶8 We conclude that Shiffra/Green improperly relied on
Ritchie when it invented a right to access privileged
information (specifically a complainant's privileged mental
health treatment records) via a motion for in camera review. We
9
As noted previously, while five Justices would reverse the
decision of the court of appeals——in whole or in part——no more
than three Justices can agree on the same rationale or result.
As a result, the law remains as the court of appeals has
articulated it. See Johnson II, 353 Wis. 2d 119, ¶2 (per curiam)
("Specifically, no [majority of] justices reach agreement to
either affirm, reverse, or modify the decision of the court of
appeals consistent with precedent. Consequently, the court of
appeals decision remains the law of the case." (citing Phillips,
329 Wis. 2d 639, ¶¶1-2)).
6
No. 2011AP2680-CR
further conclude that Shiffra/Green cannot be grounded in any
other legal basis, specifically any other constitutional
provision. We would, therefore, overrule Shiffra/Green and its
progeny. Consequently, we need not address the second and third
issues presented for review.10
I. BACKGROUND
¶9 As a young child, the complainant was repeatedly
sexually assaulted by her father. It was during this period of
sexual abuse that the complainant sought mental health
treatment. Her father was eventually charged and convicted of
five counts of first-degree sexual assault of a child.
¶10 In the case before us, the complainant alleges that
during the same time her father was sexually assaulting her, she
was also being sexually assaulted by another——the defendant,
Lynch. At the time of the alleged sexual assaults, Lynch was a
law enforcement officer and was "good friends" with the
complainant's father. According to the complainant, Lynch
sexually assaulted her on six or seven occasions in her father's
home. The following excerpts taken from the complainant's
testimony while she was being questioned by Lynch's attorney at
his preliminary hearing reveal the nature of three of the
alleged sexual assaults:
10
See, e.g., Hull v. State Farm Mut. Auto Ins. Co., 222
Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("As a general rule,
when our resolution of one issue disposes of a case, we will not
address additional issues.").
7
No. 2011AP2680-CR
Q. The first time it happened –- let's talk about the
first time it happened. You went into this bathroom
that you agree was about three feet by five feet
approximately.
A. Yes.
Q. And there is a toilet and sink in this small room.
A. Right.
Q. And what you recall is, what, you walked in the
bathroom. Did you close the bathroom door?
A. Yes, I was in there going to the bathroom.
Q. Was your dad in the house at the time?
A. Yes, he was.
Q. And [Lynch] opened the door?
A. And came in.
Q. And were your slacks down at that point because you
were going to the bathroom?
A. I was pulling them up because I had just finished
going to the bathroom.
Q. And did he then take his clothes off?
A. He then put me on the ground.
. . . .
Q. And did he take your clothes off?
A. I had to pull my pants down.
Q. Did he tell you to do that or did he do it?
A. He told me to do it.
. . . .
Q. Did he take his trousers completely off to the best
of your recollection?
8
No. 2011AP2680-CR
A. I remember him taking them down. I don't know if
they came off completely
Q. You stated that he placed his penis inside of your
vagina, correct?
A. Correct.
Q. Did he ejaculate?
A. I don't know.
Q. I know this may be difficult, but approximately how
long, in terms of time, was his penis inside of your
vagina?
A. Like five or ten minutes.
Q. Did you cry out or scream for help, or did you cry
out or scream in pain?
A. No, because I was terrified. He was wearing a cop
uniform and he had a gun and I was terrified of what
he would do.
Q. To your knowledge did you father know what was
going on?
A. Yes.
Q. How do you know that your father knew what was
going on?
A. Because he was right outside the door when it was
happening.
. . . .
Q. What do you remember happening on the second
incident in the winter of 1990?
A. I got called into the bathroom and he told me to
take my pants off. That's when he started fondling me.
Q. And did he, during that incident, take off his
trousers?
A. Yes.
9
No. 2011AP2680-CR
. . . .
Q. [A]fter he started fondling you, did he place you
again on the floor?
A. Yes.
Q. And how long did this incident happen going
forward?
A. It felt like hours, but it was probably 15, 20
minutes.
Q. Do you remember if he ejaculated during that time?
A. I would believe so. At that time I -- you know, you
don't think about anything else. I [was] trying to
just block my mind and lay there.
Q. That floor, was it a hard floor or was there a rug
on it?
A. Hard.
Q. So like linoleum or something?
A. Cold.
. . . .
Q. So what happened during th[e] [third] occasion?
. . . .
A. I got called down again and I --
Q. Why did you go?
A. Because I felt like I had no choice. I was scared.
I was a little girl.
. . . .
Q. Your dad called you down and then [Lynch] took over
and --
A. And we went into the bathroom. At that time he made
me sit on the toilet and perform oral sex on him.
10
No. 2011AP2680-CR
Q. Did he do -- did anything else occur? Did anything
else occur during this time besides oral sex?
A. After that he laid me down on the floor and stuck
his penis into my vagina.
Q. Were you crying during this incident?
A. Yes.
Q. The first incident were you crying?
A. Yeah.
Q. Second incident were you crying?
A. I had tears.
Q. Third incident when [another person] was there you
were crying?
A. Yes, I had tears. I was afraid to make any noise or
any sound.
. . . .
The testimony of the complainant reveals that the alleged sexual
assaults included forced "fondling," "oral sex," and
"intercourse." According to the complainant, all of the sexual
assaults took place in a small bathroom (described in the above
testimony) next to the kitchen.
¶11 The complainant also testified that after her father's
trial (which took place a few years after the alleged sexual
abuse occurred), Lynch would show up where she worked. The
following excerpt, again taken from the complainant's testimony
at the defendant's preliminary hearing reveals the nature of the
alleged stalking:
Q. Tell us what you saw when you were working there
during that time? What happened?
11
No. 2011AP2680-CR
A. The first time I saw him through the drive-thru and
he did the same thing that he did at [another
workplace], and he would stare me down and I walked
away at that time. I was a supervisor, so I could exit
and I didn't have to take transactions. So I would go
in back by the vault.
Q. Okay. How many times did that occur during the time
that you were working there between May of 2007 and
February of 2008 that he would go through –- that you
could see the defendant at the drive-thru?
A. At the drive-thru probably three times, four times.
Q. Okay. Total four times?
A. In the drive-thru. He did come into the lobby of
the bank too.
Q. Okay. Tell us about when he would come into the
lobby of the bank what would happen.
A. He would walk in and walk up to the table and kind
of look at where I was at, and then wait for my teller
line to be open, then approach mine. Then I would have
one of the tellers come and take my spot and I would
exit.
Q. How many times do you recall that happening during
the time that you were working there?
A. Like three.
Q. Okay. How do you know . . . that it just wasn't the
line that was open for him to conduct business at your
teller window?
A. Because there was always more than one teller. I
was just the one who filled in when the lines were
long. And there would be other tellers open at that
time when he would approach my window.
Q. Okay. When this was occurring, how did you feel
when you saw the defendant at [your workplace]?
A. I was terrified.
Q. Why is that?
12
No. 2011AP2680-CR
A. Because it put me back to when I was a little girl.
I mean, I was afraid. He wore the same uniform that he
did –- I mean, when he molested me, that he did when
he came to [my workplace].
¶12 Many years after the alleged sexual assaults and
stalking by Lynch took place, the State charged Lynch with three
counts of first-degree sexual assault of a child11 and three
counts of stalking12.13
11
Wisconsin Stat. § 948.02(1) provides, "Whoever has sexual
contact or sexual intercourse with a person who has not attained
the age of 13 years and causes great bodily harm to the person
is guilty of a Class A felony." Sexual intercourse is defined as
"vulvar penetration as well as cunnilingus, fellatio, or anal
intercourse between persons or any other intrusion, however
slight, of any part of a person's body or of any object into the
genital or anal opening either by the defendant or upon the
defendant's instruction. The emission of semen is not required."
Wis. Stat. § 948.01(6).
12
Wisconsin Stat. § 940.32(2) states,
Whoever meets all of the following criteria is guilty
of a Class I felony:
(a) The actor intentionally engages in a course of
conduct directed at a specific person that would cause
a reasonable person under the same circumstances 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.
(b) The actor knows or should know that at least one
of the acts that constitutes the course of conduct
will cause the specific person to suffer serious
emotional distress or place the specific person in
reasonable fear of bodily injury to or the death of
himself or herself or a member of his or her family or
household.
(c) The actor's acts cause the specific person to
suffer serious emotional distress or induce fear in
the specific person of bodily injury to or the death
(continued)
13
No. 2011AP2680-CR
¶13 Prior to trial, Lynch filed a Shiffra/Green motion,
seeking to subpoena the complainant's "psychiatric,
psychological, counseling, therapy and clinical records" from
1993-2011 for in camera review. Lynch claims that the
complainant's treatment records will likely contain information
related to his defense. More specifically, Lynch contends the
records will show that (1) the complainant exhibits ongoing
symptoms of post traumatic stress disorder, which he argues
affects her memory; (2) the complainant did not report Lynch to
any treatment providers as a child; and (3) the complainant has
sociopathic personality disorder, a symptom of which is frequent
lying.
¶14 The circuit court granted Lynch's motion for in camera
review of the complainant's privileged mental health treatment
records. It ordered the complainant to disclose "the names and
addresses of all of her treatment providers since January 1,
1980." It then stated, "By treatment providers, the [c]ourt is
talking about physicians, psychologists, psychiatrists, and
other forms of therapists engaged in any form of counseling with
[the complainant] up to the present time." (Emphasis added.) The
court further ordered that if the complainant failed to release
of himself or herself or a member of his or her family
or household.
13
Only one of the three stalking charges arose out of
Lynch's interactions with the complainant. The other two charges
stem from Lynch's interactions with other women.
14
No. 2011AP2680-CR
these records to the court, it would, pursuant to the remedy
contained in Shiffra/Green, bar her testimony at trial.
¶15 The complainant refused to surrender her privileged
mental health treatment records "[u]nless and until" the circuit
court's determination was reviewed by another court. As a
consequence, the court barred her from testifying against Lynch
at trial. The State filed an appeal.
¶16 The court of appeals affirmed. State v. Lynch, 2015 WI
App 2, 359 Wis. 2d 482, 859 N.W.2d 125. The court of appeals
agreed with the circuit court's finding that Lynch had met the
showing required by Shiffra/Green.14 The court further agreed
"with the circuit court that, under Shiffra[/Green], the only
available remedy when a victim refuses to disclose records for
an in camera review is the exclusion of the victim's testimony
at trial." Id., ¶1. As a result, the court of appeals remanded
for further proceedings. The State filed a petition for review
to this court, and we granted the State's petition.15
14
The issue of whether Lynch made the requisite showing
under Shiffra/Green is not at issue before this court because
the State did not seek review of the court of appeals'
conclusion that Lynch met the Shiffra/Green showing.
15
The dissent repeatedly chastises the State for bringing
the present claim before this court. See, e.g., Justice
Ziegler's dissent, ¶189. The State's decision to appeal this
case should not be harshly rebuked because the law in this case
is anything but "settled." After five Justices could not reach a
consensus in State v. Johnson, 2013 WI 59, 348 Wis. 2d 450, 832
N.W.2d 609 (per curiam) (Johnson I) and Johnson II, the State
was left with a messy predicament. As the State explained in its
petition for review, it seeks some much needed clarity:
(continued)
15
No. 2011AP2680-CR
II. DISCUSSION
¶17 We begin by briefly discussing the difference between
privilege and confidentiality, and the two statutes involved in
this case: Wis. Stat. § 905.04 (privilege statute) and Wis.
Stat. § 146.82 (confidentiality statute). We then explain why it
was improper for the Shiffra/Green court to rely on Ritchie when
it created a right to access privileged information via a motion
for in camera review. Next, we discuss why Shiffra/Green's right
to access privileged information via a motion for in camera
review cannot be grounded in any other legal basis, specifically
any other constitutional provision. We note that even if there
were a right, that right would need to be balanced against
§ 905.04, the privilege statute. We would analogize this case,
which involves access to information, to situations involving
the presentation of evidence at trial. A series of opinions from
the Supreme Court of the United States instruct that when a
defendant seeks to present evidence at trial and is barred by
statute from doing so, a court may strike down the statute only
when it is arbitrary or disproportionate to the purpose the
statute is designed to serve. Here, the privilege statute is
neither arbitrary nor disproportionate to the purpose it was
To this day, [] this court has never issued a
precedential decision addressing——other than in
passing——the state's arguments for why Shiffra rests
on shaky constitutional ground and should be
overruled. This case affords the court the opportunity
to have all seven justices weigh in on this extremely
important constitutional question.
16
No. 2011AP2680-CR
designed to serve. Finally, we end by discussing a few ways
defendants can meaningfully present a defense without having
access to a complainant's privileged mental health treatment
records.
A. STANDARD OF REVIEW
¶18 This case requires us to interpret and apply the
United States Constitution and the Wisconsin Constitution as
well as various statutes. "The interpretation of a
constitutional provision is a question of law that we review de
novo." Appling v. Walker, 2014 WI 96, ¶17, 358 Wis. 2d 132, 853
N.W.2d 888. "The interpretation and application of a statute
present questions of law that this court reviews de novo while
benefitting from the analyses of the court of appeals and
circuit court." State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193,
858 N.W.2d 346.
B. PRIVILEGE AND CONFIDENTIALITY
¶19 Two statutes, one relating to privilege and one
relating to confidentiality, are relevant to the present case.
Wisconsin Stat. § 905.04 protects a person's information by
making that information privileged: "A patient has a privilege
to refuse to disclose and to prevent any other from disclosing
confidential communications made or information obtained or
disseminated for purpose of diagnosis or treatment . . . ." In
contrast, Wis. Stat. § 146.82 protects information by making it
confidential: "All patient health care records shall remain
confidential." We must be mindful of the difference between
privileged information and confidential information:
17
No. 2011AP2680-CR
Although they are separate concepts, the terms
privilege and confidentiality are often confused.
Privilege is an exception to the general rule that the
public has a right to every man's evidence.
Confidentiality is an ethic that protects the client
from unauthorized disclosure of information about the
client by the therapist . . . . The presence of
confidentiality alone is not enough to support a
privilege. Refusal by a professional to testify in the
absence of a privilege may result in a charge of
contempt of court against the professional, while a
breach of confidentiality may be the subject of a tort
action. Confidentiality, therefore, is a professional
duty to refrain from speaking about certain matters,
while privilege is a relief from the duty to speak in
court proceedings.
Catharina J.H. Dubbelday, Comment, The Psychotherapist-Client
Testimonial Privilege: Defining the Professional Involved, 34
Emory L.J. 777, 780-81 (1985) (quotation marks and footnotes
omitted).
C. THE COURT OF APPEALS IMPROPERLY RELIED ON RITCHIE WHEN IT
INVENTED A RIGHT TO ACCESS PRIVILEGED INFORMATION VIA A MOTION
FOR IN CAMERA REVIEW.
¶20 Since much of this case revolves around the Supreme
Court of the United State's decision in Ritchie, we begin by
reviewing its facts and holding. We then discuss the court of
appeals' treatment of Ritchie in the two cases leading up to
Shiffra as well as Shiffra.
1. The Original In Camera Review Case: Pennsylvania v. Ritchie.
¶21 In Ritchie, the Supreme Court addressed whether and to
what extent a state's interest in the confidentiality of its
investigative files concerning child abuse must yield to a
criminal defendant's Sixth and Fourteenth Amendment rights.
Ritchie, 480 U.S. at 42-43. In that case, Pennsylvania created
18
No. 2011AP2680-CR
"a protective service agency charged with investigating cases of
suspected mistreatment and neglect."16 Id. at 43 (emphasis
added). The defendant was charged with "rape, involuntary
deviant sexual intercourse, incest, and the corruption of a
minor." Id. The alleged victim of those charges was the
defendant's thirteen-year-old daughter. Id. The daughter claimed
that she had been assaulted by the defendant two or three times
per week over a four year period. Id. After reporting the
incidents to the police, the case was referred to the protective
agency. Id.
¶22 Prior to trial, the defendant served the protective
agency with a subpoena; he sought access to the agency's records
concerning his daughter. Id. The protective agency refused to
turn over the records, claiming that the records were protected
from disclosure under Pennsylvania law. Id. The relevant
Pennsylvania statute provided,
reports made pursuant to this act including but not
limited to report summaries of child abuse . . . and
written reports . . . as well as any other information
obtained, reports written or photographs or x-rays
taken concerning alleged instances of child abuse in
the possession of the department, a county children
and youth social service agency or a child protective
service shall be confidential and shall only be made
available to:
. . . .
(5) A court of competent jurisdiction pursuant to a
court order.
16
The protective agency was called "Children and Youth
Services" ("CYS").
19
No. 2011AP2680-CR
Id. at n.2 (first two alterations in original) (emphasis added);
see also id. at 43-44. To summarize, the statute required that
all reports and information obtained in the course of a
protective agency's investigation be kept confidential unless a
court ordered disclosure.
¶23 The defendant in Ritchie argued that he was entitled
to the confidential information because it might contain the
names of favorable witnesses as well as exculpatory information.
See id. at 55. Moreover, he claimed that the protective agency's
refusal to disclose the confidential information violated his
constitutional rights, specifically his Sixth Amendment rights
to Confrontation and Compulsory Process and his Fourteenth
Amendment right to Due Process. See id. at 51-52, 55-56, 57-58.
The Court rejected the defendant's arguments under the Sixth
Amendment and instead addressed his arguments under the
Fourteenth Amendment. Id. at 56 ("[B]ecause our Fourteenth
Amendment precedents addressing the fundamental fairness of
trials establish a clear framework for review, we adopt a due
process analysis for purposes of this case.").
¶24 In conducting its due process analysis, the Court
relied exclusively on Brady v. Maryland, 373 U.S. 83 (1963), the
case that first established a prosecutor's disclosure
obligation, and cases that clarify Brady. Indeed, the first
sentence of the Court's due process analysis reads, "It is
well[-]settled that the government has the obligation to turn
over evidence in its possession that is both favorable to the
accused and material to guilt or punishment." Id. at 57
20
No. 2011AP2680-CR
(emphasis added). The Court then cited to Brady and United
States v. Agurs, 427 U.S. 97 (1976), a case that clarified
Brady's reach. Id. In fact, the only law cited in the Court's
due process analysis stems directly from Brady. Id. at 57-58.
¶25 Brady requires, as a prerequisite to disclosure, that
the information sought by the defendant be (1) in the
prosecutor's possession and (2) both favorable to the accused
and material to guilt or punishment. 373 U.S. at 87; see also
Ritchie, 480 U.S. at 57. The Ritchie Court readily concluded
that the first Brady requirement——that the information be in the
prosecutor's possession——was met, so it dove straight into the
second requirement——that the information be favorable to the
accused and material to guilt or punishment. Ritchie, 480 U.S.
at 57. It is clear the Ritchie Court assumed that Brady's
disclosure requirement applied to a state agency involved in
investigating the allegations as part of the prosecutorial state
function because the Court made quick-work of that requirement.
In contrast, the Court grappled with Brady's materiality
requirement:
At this stage, of course, it is impossible to say
whether any information in the [protective agency's]
records may be relevant to [the defendant's] claim of
innocence, because neither the prosecution nor defense
counsel have seen the information, and the trial judge
acknowledged that he had not reviewed the full file.
The Commonwealth, however, argues that no materiality
inquiry is required, because a statute renders the
contents of the file [confidential]. Requiring
disclosure here, it is argued, would override the
Commonwealth's compelling interest in confidentiality
on the mere speculation that the file "might" have
been useful to the defense.
21
No. 2011AP2680-CR
Id. (emphasis added).
¶26 In considering how Brady's materiality standard should
apply to speculative, protected information, the Court balanced
the defendant's interest in the information against the State's
interest in protecting the information:
Although we recognize that the public interest in
protecting this type of sensitive information is
strong, we do not agree that this interest necessarily
prevents disclosure in all circumstances. This is not
a case where a state statute grants [the protective
agency] the absolute authority to shield its files
from all eyes. Rather, the [state] law provides that
the information shall be disclosed in certain
circumstances, including when [the protective agency]
is directed to do so by court order. Given that the
[state] Legislature contemplated some use of [the
protective agency's] records in judicial proceedings,
we cannot conclude that the statute prevents all
disclosure in criminal prosecutions. In the absence of
any apparent state policy to the contrary, we
therefore have no reason to believe that relevant
information would not be disclosed when a court of
competent jurisdiction determines that the information
is "material" to the defense of the accused.
Id. at 57-58 (emphases added) (citation omitted). Accordingly,
the Ritchie Court held that the defendant was entitled to have
the protective agency's investigative file reviewed in camera,
remarking that if the files "contain[ed] information that
probably would have changed the outcome of his trial," then
"[the defendant] must be given a new trial." Id. at 58. Thus,
the point of the in camera review was to determine whether the
files met Brady's second requirement——materiality.
¶27 In sum, there are two key takeaway points from
Ritchie. First, Ritchie involved a state statute that made the
22
No. 2011AP2680-CR
protective agency's investigative files confidential. But the
statute specifically allowed for disclosure per a court order.
The Court leaned heavily on this fact in reaching its
conclusion, commenting, "the [state] law provides that the
information shall be disclosed in certain circumstances,
including when [the agency] is directed to do so by court
order." Id. at 57-58.
¶28 Second, the protective agency, the entity holding the
records, was responsible for "investigating cases of suspected
mistreatment and neglect," including the allegations made
against the defendant in that case. Id. 42-43. The Ritchie Court
considered the "investigative" status of the protective agency
important because it cited exclusively to Brady and post-Brady
cases, which require the prosecutor to turn over files in his or
her possession. The Ritchie Court's actions (summarily skipping
over this requirement) demonstrate that the protective agency
met Brady's possession requirement because the protective agency
performed state investigative and prosecutorial functions.
¶29 And this conclusion makes sense. Since Brady, the
Court has held that the prosecutor's Brady obligation extends to
"others acting on the government's behalf in the case, including
the police." See Kyles v. Whitley, 514 U.S. 419, 437 (1995)
("[T]he individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the
government's behalf in the case, including the police."
(emphasis added)); Strickler v. Greene, 527 U.S. 263, 281 (1999)
("In order to comply with Brady, therefore, 'the individual
23
No. 2011AP2680-CR
prosecutor has a duty to learn of any favorable evidence known
to the others acting on the government's behalf in this case,
including the police.'" (citing Kyles, 514 U.S. at 437)). In
Ritchie, the state statute charged the relevant protective
agency with "investigating cases of suspected mistreatment and
neglect." 480 U.S. at 43. There, in particular, the defendant's
case was "referred" to the protective agency. Id. In short, it
made sense for the Supreme Court to rely on Brady and post-Brady
cases in Ritchie because the protective agency was charged with
investigating the allegations and was, therefore, acting on the
prosecution's behalf. As a result, any material it had was
constructively within the possession of the prosecution.
2. Our Court of Appeals Gradual Expansion of Ritchie: In the
Interest of K.K.C., State v. S.H., and State v. Shiffra.
¶30 Nearly one year after the Supreme Court of the United
States decided Ritchie, our court of appeals took up In the
Interest of K.K.C., 143 Wis. 2d 508, 422 N.W.2d 142 (Ct. App.
1988). The court reached the following conclusion regarding
Ritchie:
[The defendant] contends that if the trial judge in
his criminal case does not review the agency's files,
he will be denied his constitutional rights to
confrontation, compulsory process, and due process.
Ritchie holds that a criminal defendant is entitled to
an in camera review by the trial court of confidential
records if those records are material to the
defendant's defense.
[The defendant] has not moved the trial court in his
criminal case to make an in camera review of the
agency records. If he does so, Ritchie, supra,
establishes that he is entitled to such a review by
24
No. 2011AP2680-CR
the trial court, provided he makes a preliminary
showing that the files contain evidence material to
his defense.
In the Interest of K.K.C., 143 Wis. 2d 508, 511, 422 N.W.2d 142
(Ct. App. 1988) (citations omitted). That's the court's entire
Ritchie analysis.
¶31 The statute in K.K.C., Wis. Stat. § 48.78(2)(a),
provided, "No agency may make available for inspection or
disclose the contents of any record kept or information received
about any individual in its care or legal custody, except as
provided [under other subsections] or by order of the court."
Id. at 509-10. Similar to the statute in Ritchie, § 48.78(2)(a)
carved out a court order exception. However, unlike in Ritchie,
it is unclear whether the County Department of Social Services
was "investigating" or "acting on the government's behalf" by
assisting the prosecution.
¶32 Two years later, the court of appeals decided State v.
S.H., 159 Wis. 2d 730, 465 N.W.2d 238 (Ct. App. 1990). There,
the court once again interpreted Ritchie, this time broadly
expanding Ritchie's reach. In S.H., the State charged the
defendant with twelve counts of first-degree sexual assault.
State v. S.H., 159 Wis. 2d 730, 733, 465 N.W.2d 238 (Ct. App.
1990). The alleged victims of those charges were the defendant's
three children. Id. Prior to trial, the defendant sought a court
order directing the children's counseling center (Directions
Counseling Center) to provide him with copies of the children's
treatment records. Id. at 734. The counseling center refused to
release the records after the children's guardian ad litem
25
No. 2011AP2680-CR
claimed the psychologist-patient privilege (Wis. Stat. § 905.04)
on behalf of the children. Id. The court of appeals, citing
Ritchie and K.K.C., concluded that "if a defendant makes a
preliminary showing that the records contain evidence material
to his defense, he is entitled to an in camera review by the
trial court of those records." Id. at 738. Here is the court of
appeals' analysis and application of Ritchie:
[Ritchie] controls S.H.'s constitutional right to
compel disclosure of confidential records. That
[C]ourt conducted a due process analysis and concluded
that the defendant was entitled to an in camera review
by the trial court of confidential records. In
Ritchie, the Court struck a balance between the
protection of confidential information and the
defendant's interest in obtaining exculpatory
information. The Court recognized that an in camera
review denied the defendant the benefit of an
"advocate's eye." However, such review adequately
protected the defendant's rights while protecting the
confidentiality of the records. Accordingly, if a
defendant makes a preliminary showing that the records
contain evidence material to his defense, he is
entitled to an in camera review by the trial court of
those records.
Id. at 737-38 (citations omitted). The court of appeals left out
some of Ritchie's crucial features.
¶33 For example, unlike in Ritchie and K.K.C., where the
records sought were confidential, the records sought in S.H.
were privileged under Wis. Stat. § 905.04. Moreover, unlike the
statutes in Ritchie and K.K.C., § 905.04 does not contain an
exception allowing for release by court order.
¶34 Additionally, in S.H., a private mental health
facility, Directions Counseling Center, held the privileged
26
No. 2011AP2680-CR
records. Id. at 733-34. Unlike the protective agency in Ritchie,
no facts in the court of appeals' opinion would suggest that
Directions Counseling Center was involved in "investigating" the
sexual assault allegations or was in any way acting on behalf of
the prosecutor. In reaching its conclusion, the court of appeals
failed to take notice of these important distinguishing
features. Instead, the court incorrectly interpreted Ritchie to
mean "that the defendant was entitled to an in camera review by
the trial court of confidential records." Id. at 737-38.
¶35 Almost three years later, the court of appeals
considered State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719
(Ct. App. 1993). In Shiffra, the state charged the defendant
with second-degree sexual assault. 175 Wis. 2d at 602. Prior to
trial, the defendant moved for an order requiring the
complainant to reveal to the defendant her "psychiatric history,
psychiatric records, and to execute an authorization to release
medical information from any doctors, hospitals or counselors
seen by [the complainant] . . . ." Id. at 603. The State opposed
the motion, arguing that the complainant's records were
privileged under Wis. Stat. § 905.04. Despite the State's
argument that "th[e] case d[id] not fall within the ambit of
Ritchie because [the complainant's] records [were] not in the
possession of the prosecution or any other state agency," the
court concluded,
We are bound by Wisconsin precedent, which clearly
makes Ritchie applicable to cases in which the
information sought by the defense is protected by
statute and is not in the possession of the state. See
27
No. 2011AP2680-CR
K.K.C., 143 Wis. 2d at 511, 422 N.W.2d at 144
(information sought was confidential); S.H., 159
Wis. 2d at 736, 465 N.W.2d at 240-41 (information
sought was protected under sec. 905.04, Stats., and
was in the possession of a private counseling center).
According to these cases, Shiffra is entitled to an in
camera inspection if he meets the burden of making a
preliminary showing of materiality. The State contends
that S.H. and K.K.C. are not binding because their
relevant language is dicta. We do not agree. Both
cases unequivocally adopted Ritchie as the law in
Wisconsin even when the records are not in the state's
possession.
Id. at 606-07.
¶36 To say the court of appeals took some liberties
interpreting and applying Ritchie would be an understatement.
Over the course of three cases, K.K.C., S.H., and Shiffra, the
court of appeals swept into Ritchie's reach privileged records
held by entities completely removed from the investigative
criminal process. Ritchie——a case concerning confidential
records (subject to numerous exceptions) held by the very agency
charged with investigating the offense and therefore soundly
rooted in Brady——never should have been stretched to cover
privileged records held by agencies far removed from
investigative and prosecutorial functions. As a result, we
conclude that the court of appeals improperly relied on Ritchie
when it created a right to access privileged information that is
not in the prosecutor's hands via a motion for in camera review.
3. This Court's Adoption of Shiffra.
¶37 This court appears to have first "adopted" the court
of appeals' Shiffra test in State v. Solberg, 211 Wis. 2d 372,
564 N.W.2d 775 (1997). We use the term "adopted" loosely because
28
No. 2011AP2680-CR
the Solberg court simply parroted Shiffra's test and then cited
Shiffra:
Whether the court of appeals had the authority to
examine E.H's records is dependent on whether the
circuit court appropriately conducted an in camera
inspection of the records. If the circuit court had
the authority to review the privileged records, then
the court of appeals also had the authority to do so.
A circuit court should conduct an in camera review of
privileged medical records when the defendant makes "a
preliminary showing that the sought-after evidence is
material to his or her defense," and the privilege
holder consents to review of those records.
State v. Solberg, 211 Wis. 2d 372, ¶16, 564 N.W.2d 775 (1997)
(footnote omitted) (quoting Shiffra, 175 Wis. 2d at 605). The
Solberg court's singular string of reasoning for such a rule was
its "belie[f] that giving the defendant an opportunity to have
the circuit court conduct an in camera review of the privileged
records, while still allowing the patient to preclude review,
addresse[d] both the interests of the defendant and the
patient." Id., ¶23. In essence, Shiffra seemed fair enough to
the Solberg court.
¶38 We also considered Shiffra in State v. Rizzo, 2002 WI
20, 250 Wis. 2d 407, 640 N.W.2d 93. Similar to the court in
Solberg, the Rizzo court applied Shiffra without any analysis of
Shiffra or its foundation. Here is the Rizzo court's application
of Shiffra:
We do no adopt Rizzo's position because it would
eviscerate the procedure for in camera review set
forth in Shiffra, which protects a victim's
confidential records. In effect, Rizzo's position
would provide that the defendant must receive full
access to the victim's treatment records in every case
29
No. 2011AP2680-CR
in order to effectively cross-examine an expert who
treated the victim. That is in stark contrast to the
in camera procedure under Shiffra, which specifically
balanced the victim's interest in confidentiality
against the constitutional rights of the defendant.
State v. Rizzo, 2002 WI 20, ¶53, 250 Wis. 2d 407, 640 N.W.2d 93
(citing Shiffra, 175 Wis. 2d at 609-10).
¶39 Finally, in State v. Green, this court modified
Shiffra's standard for obtaining an in camera review. The Green
court's consideration of whether Shiffra was good law is as
follows:
The State contends that the holding in [Shiffra] was
in error because it relied on [Ritchie]. The State
argues that Ritchie was distinguishable and therefore
inapplicable because it involved a situation, unlike
here, where the records were in the government's
possession. The Shiffra court, however, specifically
rejected this argument, concluding that it was bound
by Wisconsin precedent, which clearly made Ritchie
applicable in cases where the information sought by
the defense is not in the possession of the state.
Shiffra, 175 Wis. 2d at 606-07, 499 N.W.2d 719 (citing
State v. S.H., 159 Wis. 2d 730, 736, 465 N.W.2d 238
(Ct. App. 1990), and In re K.K.C., 143 Wis. 2d 508,
511, 422 N.W.2d 142 (Ct. App. 1988)). This court
recognized the validity of Shiffra in [Solberg] and
[Rizzo]. We will not depart from this precedent.
Green, 253 Wis. 2d 356, ¶21 n.4.17 To put it bluntly, Shiffra
17
The dissent repeatedly uses this footnote in Green to
proclaim that we have expressly declined to overrule Shiffra.
See Justice Ziegler's dissent, ¶190; see also Justice Prosser's
dissent, ¶167. In reality, this footnote shows that courts have
continued to blindly adhere to poorly reasoned cases solely
because they have felt compelled to do so. Any one of these
courts along the way could have at least attempted to address
the State and answer the question of whether a defendant has a
constitutional right to access privileged information, and if
so, what the basis of that right is. None did. We cannot
continue to pass the buck. We must roll up our sleeves and dig
(continued)
30
No. 2011AP2680-CR
kept the balancing test invented by the court of appeals in S.H.
and K.K.C. because it felt "bound by precedent," and this court
kept Shiffra because Solberg and Rizzo appeared to apply it.
This is the untenable foundation upon which Shiffra was built
and now rests. We will not rubber stamp the Shiffra test solely
because it has been inexplicably applied.18
into the law. Interpreting the Constitution is, after all, the
ultimate responsibility of this court. See Powell v. McCormack,
395 U.S. 486, 521 (1969).
18
The dissent relies on Kimble v. Marvel Entertainment,
LLC, 576 U.S. __, 135 S. Ct. 2401 (2015) for the proposition
that "an argument that we got something wrong——even a good
argument to that effect——cannot by itself justify scrapping
settled precedent." Justice Ziegler's dissent, ¶208. Kimble is a
statutory interpretation case. Accordingly, in Kimble, the
Supreme Court of the United States discussed stare decisis in
the context of statutory interpretation:
What is more, stare decisis carries enhanced force
when a decision . . . interprets a statute. Then,
unlike in a constitutional case, critics of our ruling
can take their objections across the street, and
Congress can correct any mistake it sees. . . . All of
interpretive decisions, in whatever way reasoned,
effectively become part of the statutory scheme,
subject (just like the rest) to congressional changes.
Absent special justification, they are balls tossed
into Congress's court, for acceptance or not as that
branch elects.
Kimble v. Marvel Entm't, LLC, 576 U.S. __, 135 S. Ct. 2401, 2409
(2015) (emphasis added).
Even Kimble's "general" discussion of the law speaks to
stare decisis in the context of statutory interpretation, as it
cites to Justice Brandeis's dissent in Burnet v. Coronado Oil &
Gas Co., 285 U.S. 393 (1932). Burnet explains,
Stare decisis is usually the wise policy, because in
most matters it is more important that the applicable
(continued)
31
No. 2011AP2680-CR
rule of law be settled than that it be settled right.
This is commonly true even where the error is a matter
of serious concern, provided correction can be had by
legislation. But in cases involving the Federal
Constitution, where correction through legislative
action is practically impossible, this court has often
overruled its earlier decisions. The court bows to the
lessons of experience and the force of better
reasoning . . . .
Id., 285 U.S. at 406-08 (Brandeis, J., dissenting) (citations
omitted).
It is important to recognize the distinction between
statutory interpretation and constitutional interpretation. As
noted by the Supreme Court, "unlike in a constitutional case,"
critics of a statutory interpretation case can take their
objections to the Legislature, and it can then can "correct any
mistake it sees." Id. (emphasis added); see also Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 954-55 (1992)
(Rehnquist, C.J., concurring in part, dissenting in part)
("Erroneous decisions in [] constitutional cases are uniquely
durable, because correction through legislative action, save for
constitutional amendment, is impossible. It is therefore our
duty to reconsider constitutional interpretations that depart
from a proper understanding of the Constitution." (quotation
marks and citations omitted)). In declaring that a defendant has
a constitutional right in this case, the dissenters remove the
issue from public discussion and legislative action. See
Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2584, 2625 (2015)
(Roberts, C.J., dissenting) ("By deciding this question under
the Constitution, the Court removes it from the realm of
democratic decision. There will be consequences to shutting down
the political process on an issue of such profound public
significance. Closing debates tends to close minds.").
Moreover, the Supreme Court of the United States has
overruled precedent when the precedential case was "badly
reasoned." See Payne v. Tennessee, 501 U.S. 808, 827 (1991)
([W]hen governing decisions are unworkable or badly reasoned,
'this court has never felt constrained to follow precedent.'"
(citing Smith v. Allwright, 321 U.S. 649, 665 (1944) (emphasis
added))); Arizona v. Gant, 556 U.S. 332, 348 (2009) ("The
doctrine of stare decisis is of course 'essential to the respect
accorded to the judgments of the Court and to the stability of
the law,' but it does not compel us to follow a past decision
(continued)
32
No. 2011AP2680-CR
We therefore undertake to consider whether there is any legal
basis in which Shiffra can properly be grounded.19
D. NEITHER THE SIXTH AMENDMENT NOR THE FOURTEENTH AMENDMENT
GUARANTEE A DEFENDANT THE RIGHT TO ACCESS PRIVILEGED INFORMATION
VIA A MOTION FOR IN CAMERA REVIEW.
¶40 We turn now to discuss whether there is any other
legal basis for creating a right to access privileged
when its rationale no longer withstands 'careful analysis.'"
(emphasis added) (quoting Lawrence v. Texas, 539 U.S. 558, 577
(2003)); Gant, 556 U.S. at 353 (Scalia, J., concurring)
("Justice Alito insists that the Court must demand a good reason
for abandoning prior precedent. That is true enough, but its
seems to me ample reason that the precedent was badly reasoned
and produces erroneous (in this case unconstitutional)
results."); Montejo v. Louisiana, 556 U.S. 778, 792-73
(commenting that "[b]eyond workability, the relevant factors in
deciding whether to adhere to the principle of stare decisis
include the antiquity of the precedent, the reliance interests
at stake, and of course whether the decision was well reasoned,"
and noting that the precedential opinion there was "only two
decades old" so "eliminating it would not upset expectations")
(emphasis added)); see Citizens United v. Fed. Election Comm'n,
558 U.S. 310, 378 (2010) (Roberts, C.J., concurring) ("When
considering whether to reexamine a prior erroneous holding, we
must balance the importance of having constitutional questions
decided against the importance of having them decided right.").
19
In case this point has not been made abundantly clear in
the 15 pages detailing the countless inadequacies of
Shiffra/Green, Shiffra/Green was wrongly decided, is unsound in
principle, and should, therefore, be overruled. See Johnson
Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶¶98-99,
264 Wis. 2d 60, 665 N.W.2d 257 (overruling precedent and
outlining a series of concerns a court should consider when
overturning prior case law, including "whether the prior case
was correctly decided," and "whether the prior decision is
unsound in principle"); see also id., ¶100 ("We do more damage
to the rule of law by obstinately refusing to admit errors,
thereby perpetuating injustice, than by overturning an erroneous
decision.").
33
No. 2011AP2680-CR
information via a motion for in camera review. An analysis of
other cases tackling this topic reveals that defendants have
consistently argued that three constitutional provisions——the
Sixth Amendment's Confrontation Clause and Compulsory Process
Clause and the Fourteenth Amendment's Due Process Clause——give
rise to a right to access privileged information via a motion
for in camera review. See, e.g., Indiana v. Fromme, 949 N.E.2d
789, 795 (Ind. 2011). Each provision will be discussed in turn
below.
1. The Sixth Amendment's Confrontation Clause.
¶41 The United States Constitution provides, "In all
criminal prosecutions the accused shall enjoy the right . . . to
be confronted with witnesses against him . . . ." U.S. Const.
amend. VI.20 The Supreme Court of the United States has
explained, "The Confrontation Clause provides two types of
protections for a criminal defendant: the right physically to
face those who testify against him, and the right to conduct
cross-examination. Ritchie, 480 U.S. at 51 (plurality opinion).21
¶42 A plurality of the Supreme Court has specifically
considered——and rejected——the argument that "by denying [a
20
The Wisconsin Constitution provides, "In all criminal
prosecutions the accused shall enjoy the right . . . to meet
witnesses face to face . . . ." Wis. Const. art. I, § 7.
21
Justice Powell's discussion of the Confrontation Clause
in Ritchie garnered a plurality of the Court. 480 U.S. at 42.
Justice Powell's discussion of the Compulsory Process Clause and
the Due Process Clause garnered a majority of the Court. Id.
34
No. 2011AP2680-CR
defendant] access to the information necessary to prepare his
defense, the trial court interfered with [a defendant's] right
of cross-examination." Id. In Ritchie, the Court commented on
the limited nature of a defendant's right to cross-examination:
"The ability to question adverse witnesses, however, does not
include the power to require the pretrial disclosure of any and
all information that might be useful in contradicting
unfavorable testimony." Id. at 53. Moreover, the Court went on
to add, "If we were to accept this broad interpretation . . . ,
the effect would be to transform the Confrontation Clause into a
constitutionally compelled rule of pretrial discovery. Nothing
in the case law supports such a view. The opinions of this Court
show that the right to confrontation is a trial right . . . ."
Id. at 52 (first emphasis added). Thus, the right to cross
examine witnesses is satisfied when "defense counsel receives
wide latitude at trial to question witnesses." Id. at 53 n.9
("[T]he Confrontation Clause only protects a defendant's trial
rights[; it] does not compel the pretrial production of
information that might be useful in preparing for trial.").
¶43 Similar to the defendant in Ritchie, Lynch's argument
would be that the court interfered with his ability to most
effectively cross examine the complainant by denying him access
to the complainant's privileged mental health treatment records.
A plurality of the Supreme Court has already rejected this
argument, and we reject this argument now. Lynch's right to
cross examination will be satisfied so long as he has the
opportunity to cross examine the complainant at trial.
35
No. 2011AP2680-CR
2. The Sixth Amendment's Compulsory Process Clause.
¶44 The United States Constitution provides, "In all
criminal prosecutions the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his favor."
U.S. Const. amend. VI.22 The Supreme Court of the United States
has explained that the Compulsory Process Clause grants a
defendant the "right to offer the testimony of witnesses, and to
compel their attendance, if necessary . . . ." Washington v.
Texas, 388 U.S. 14, 19 (1967); see also Ritchie, 480 U.S. at 56
(majority opinion) ("Our cases establish, at a minimum, that
criminal defendants have the right to the government's
assistance in compelling the attendance of favorable witnesses
at trial and the right to put before a jury evidence that might
influence the determination of guilt." (emphasis added)).
¶45 In State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746
N.W.2d 457, we analyzed the Ritchie Court's treatment of the
Compulsory Process Clause, specifically taking notice of the
Supreme Court's "reluctan[ce] to establish an unconditional
discovery right under the Sixth Amendment." Id., ¶66. In
Ritchie, the Court reiterated that it "has never squarely held
that the Compulsory Process Clause guarantees the right to
discover the identity of witnesses, or to require the government
to produce exculpatory evidence." Ritchie, 480 U.S. at 56
22
The Wisconsin Constitution provides, "In all criminal
prosecutions the accused shall enjoy the right . . . to have
compulsory process to compel the attendance of witnesses in his
behalf . . . ." Wis. Const. art. I, § 7.
36
No. 2011AP2680-CR
(emphasis omitted). Consequently, the Court chose to forego a
Sixth Amendment analysis and instead opted for a Fourteenth
Amendment Due Process analysis. Id. It explained, "Although we
conclude that compulsory process provides no greater protections
in this area than those afforded by due process, we need not
decide today whether and how the guarantees of the Compulsory
Process Clause differ from those of the Fourteenth Amendment."
Id. In Schaefer, we interpreted the Court's statement in Ritchie
to mean that "unless due process required defense access to
specific evidence, the Compulsory Process Clause cannot provide
substitute authority for such access." Schaefer, 308
Wis. 2d 279, ¶66. Following the Supreme Court's lead, we move on
to consider whether the Due Process Clause guarantees a
defendant the right to access privileged information via a
motion for in camera review.23
23
For a discussion on the interplay between the Compulsory
Process Clause and the Due Process Clause, see Stacey Kime,
Note, Can A Right Be Less Than The Sum Of Its Parts? How The
Conflation Of Compulsory Process and Due Process Guarantees
Diminished Criminal Defendants Rights, 48 Am. Crim. L. Rev. 1501
(2011) and Sanjay Chhablani, Disentangling The Sixth Amendment,
U. Pa. J. Const. L. 487, 523-29 (2009). Both law review articles
advocate for a separation of the two constitutional provisions:
"The rights under the Compulsory Process Clause provide the
structure for a fair trial . . . while the Due Process Clause
governs the fairness of the trial itself . . . ." Stacey Kime,
Note, Can A Right Be Less Than The Sum Of Its Parts? How The
Conflation Of Compulsory Process and Due Process Guarantees
Diminished Criminal Defendants Rights, 48 Am. Crim. L. Rev.
1501, 1524 (2011); see also Sanjay Chhablani, Disentangling The
Sixth Amendment, U. Pa. J. Const. L. 487, 527-28 (2009)
("[W]hile the Compulsory Process Clause gives defendants the
right to the issuance of subpoenas for compelling a witness's
attendance in court, once that witness shows up, it is the Due
(continued)
37
No. 2011AP2680-CR
3. The Fourteenth Amendment's Due Process Clause.
¶46 The United States Constitution provides, "No State
shall . . . deprive any person of life, liberty or property,
without due process of law . . . ." U.S. Const. amend. XIV.24 Due
Process requires that criminal prosecutions comport with
"prevailing notions of fundamental fairness." California v.
Trombetta, 467 U.S. 479, 485 (1984). Fundamental fairness
necessitates that "criminal defendants be afforded a meaningful
opportunity to present a complete defense." Id. However, the
right to present a complete defense has never been interpreted
to include a general right to access (or discover) information
in a criminal case. To the contrary, the Supreme Court has
consistently recognized that "there is no general constitutional
right to discovery in a criminal case . . . ." Ritchie, 480 U.S.
at 59-60 (quoting Weatherford v. Bursey, 429 U.S. 545, 559
(1977)).
¶47 We too have held that there is no general
constitutional right to access information in criminal cases.
See State v. Miller, 35 Wis. 2d 454, 151 N.W.2d 157 (1967); see
also Britton v. State, 44 Wis. 2d 109, 170 N.W.2d 785 (1969)
Process Clause that addresses whether the witness will be
allowed to testify.").
24
The Wisconsin Constitution provides, "All people are born
equally free and independent, and have certain inherent rights;
among these are life, liberty, and the pursuit of happiness; to
secure these rights, governments are instituted, deriving their
just powers from the consent of the governed." Wis. Const. art.
I, § 1.
38
No. 2011AP2680-CR
("Discovery has been left to rule-making power and has not been
deemed a constitutional issue."). Accordingly, a defendant is
entitled to access information only to the extent outlined in
Wis. Stat. § 971.23, our criminal discovery statute. Schaefer,
398 Wis. 2d 279, ¶77 n.17 ("[T]he scope of discoverable
materials is set out in statute and compliance with the statute
will be enforced by the court."); see also Miller, 35 Wis. 2d at
474 ("[I]t has been held that unless introduced by appropriate
legislation, the doctrine of discovery is a complete and utter
stranger to criminal procedure." (quoting 23 C.J.S. Criminal Law
§ 955(1), p. 787)).25
¶48 Of course, "[s]tatutory discovery is conceptually
distinct from the prosecution's constitutionally-mandated duty
to disclose exculpatory evidence" under Brady. 9 Wis. Prac.,
Criminal Practice & Procedure § 22:1 (2d ed.); see also Miller,
25
Of course, the Supreme Court of the United States could
decide to create a due process right to access privileged
information, in which case, we would naturally follow the
Supreme Court's directive. To date, the Supreme Court has not
recognized a due process right to access privileged information.
See California v. Trombetta, 467 U.S. 479, 486 (explaining that
the Court has allowed some access to information when a
prosecutor uses his or her "sovereign powers" to "hamper" a
defendant's trial, but purposely leaving open the question of
whether "the Due Process Clause . . . guarantee[s] criminal
defendants access to exculpatory evidence beyond the
government's possession" (emphasis added)); see also People v.
Hammon, 938 P.2d 986 (Cal. 1997) ("We do not, however, see an
adequate justification for taking such a long step in a
direction the United States Supreme Court has not gone.").
39
No. 2011AP2680-CR
35 Wis. 2d at 474-78; Britton, 44 Wis. 2d at 117-18; Schaefer,
308 Wis. 2d 279, ¶¶22-23. In Britton, we explained,
A distinction must be made between "disclosure" and
"discovery." Discovery emphasizes the right of the
defense to obtain access to evidence necessary to
prepare its own case, while disclosure concerns itself
with the duty of the prosecution to make available to
the accused evidence and testimony which, as a minimum
standard, is exculpatory based on constitutional
standards of due process. Discovery has been left to
rule-making power and has not been deemed a
constitutional issue. On the other hand, disclosure,
or the failure to disclose, is a constitutional issue
to be decided on a case by case basis . . . .
Britton, 44 Wis. 2d at 117-18 (emphasis added).
¶49 A prosecutor's constitutionally-mandated duty to
disclose arises out of the Supreme Court of the United State's
decision in Brady. In Brady, the Court held that "the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." 373 U.S. at 87
(emphasis added). The Court reasoned, "A prosecution that
withholds evidence on demand of an accused which, if made
available, would tend to exculpate him or reduce the penalty
helps shape a trial that bears heavily on the defendant. That
casts the prosecutor in the role of an architect of a proceeding
that does not comport with standards of justice . . . ." Id. at
87-88 (emphasis added). Stated otherwise, a defendant is treated
unfairly when a prosecutor hides favorable evidence from a
defendant.
40
No. 2011AP2680-CR
¶50 The Supreme Court of the United States has
consistently limited Brady's disclosure requirement to the
prosecutor and to others acting on the prosecutor's behalf. See
Kyles, 514 U.S. at 437 ("[T]he individual prosecutor has a duty
to learn of any favorable evidence known to the others acting on
the government's behalf in the case, including the police."
(emphasis added)); Strickler, 527 U.S. at 281 ("In order to
comply with Brady, therefore, 'the individual prosecutor has a
duty to learn of any favorable evidence known to others acting
on the government's behalf in this case, including the police.'"
(citing Kyles, 514 U.S. at 437)). For example, in Pitonyak v.
Stephens, 732 F.3d 525 (5th Cir. 2013), the Fifth Circuit,
recognizing Brady's limitation, held that the prosecution's
Brady requirement did not extend to "a jail counselor" because
the counselor was "not involved in investigating or preparing
the case against [the defendant]." Id. at 531, 533.
¶51 And in Illinois v. C.J., 652 N.E.2d 315 (Ill. 1995),
the Supreme Court of Illinois held that "where [the Division of
Child Family Services] acts at the behest of and in tandem with
the State's Attorney, with the intent and purpose of assisting
the prosecutorial effort, DCFS functions as an agent of the
prosecution," and is therefore subject to Brady's disclosure
requirement. Id. at 318. However, because "there was no evidence
to support the conclusion that the DCFS investigator [there]
functioned, intentionally or otherwise, as an aid in the
prosecution of the case," the prosecutor's Brady requirement did
not extend to that particular DCFS agent. Id.
41
No. 2011AP2680-CR
¶52 For comparison, in Commonwealth v. Bing Sial Liang,
747 N.E.2d 112 (Mass. 2001), the Supreme Judicial Court of
Massachusetts held that a victim advocate's notes fell within
the prosecutor's Brady requirement because "[a]dvocates are
included in the statute's definition of 'prosecutor' and
generally are employees of the prosecution." Id. at 116. The
Court went on to say, "advocates are paid by the various
district attorney[s'] offices [and] work closely with the
prosecutors developing cases.' Clearly the Legislature views
advocates as part of the prosecution team." Id. (alterations in
original) (citations omitted).
¶53 Notably, both the Seventh and Eighth Circuits have
rejected defendants' attempts to subpoena treatment records in
preparation for trial despite the defendants' assertions that
withholding the information would deprive them of a fair trial.
United States v. Hach, 162 F.3d 937 (7th Cir. 1998); United
States v. Skorniak, 59 F.3d 750 (8th Cir. 1995). In Hach, the
defendant sought a witness's "medical and psychiatric records
for purposes of conducting an in camera review, and ultimately
to release them to him for use in cross-examination." 162 F.3d
at 946. In denying the defendant's request, the Seventh Circuit
noted,
[The defendant's] attempt to bootstrap onto Ritchie
suffers from a grave[] problem——the evidence is not
and never was in the government's possession. As the
Eighth Circuit noted in United States v. Skorniak, a
failure to show that the records a defendant seeks are
in the government's possession is fatal to the
defendant's claim. . . . [I]f the documents are not in
42
No. 2011AP2680-CR
the government's possession, there can be no "state
action" and consequently, no violation of [the]
Fourteenth Amendment.
Id. at 947 (emphasis added). Simply, because the records were
not held by the prosecutor or an entity acting on behalf of the
prosecutor, the defendant was not entitled to disclosure of the
records.
¶54 To summarize, a defendant has a right to present a
meaningful defense, but this right is not limitless. It does not
include a constitutional right to access privileged information
via a motion for in camera review. Discovery is purely
statutory; accordingly, a defendant's right to obtain
information is to be found in Wis. Stat. § 971.23. In contrast,
a defendant has a constitutional right, under Brady, to material
information but only when that information is held by the
prosecutor, including others acting on the prosecutor's behalf.
Outside of the prosecution's limited disclosure requirement,
there is no constitutional right to access information.
Weatherford, 429 U.S. at 559 ("There is no general
constitutional right to discovery in a criminal case, and Brady
did not create one.").
¶55 Here, there is nothing to show that the complainant's
private mental health facility was acting on behalf of the
prosecutor. Unlike in Ritchie and Bing Sial Ling, the
complainant's mental health facility was not statutorily created
for the purpose of "investigating" crime. Additionally, there
are no facts in the record that would indicate that the facility
was acting on behalf of or in tandem with the prosecutor.
43
No. 2011AP2680-CR
Consequently, this case does not implicate Brady. In sum, Lynch
has no right to access the complainant's privileged treatment
information via a motion for in camera review because there is
no constitutional right to access information and because the
information does not fall under Brady's limited disclosure
obligation.26
E. EVEN IF THERE WERE A RIGHT TO ACCESS PRIVILEGED INFORMATION
VIA A MOTION FOR IN CAMERA REVIEW, THAT RIGHT WOULD NEED TO BE
BALANCED AGAINST WIS. STAT. § 905.04, THE PRIVILEGE STATUTE.
¶56 We have concluded that a defendant has no Sixth or
Fourteenth Amendment right to access privileged information via
a motion for in camera review. However, even if there were such
a right, that right would still need to be balanced against Wis.
Stat. § 905.04, the privilege statute. We would analogize this
case, which involves access to information, to cases involving
the presentation of evidence at trial. We do so because even if
a defendant cannot gain pre-trial access to information, the
defendant may still seek to present evidence (in the form of the
complainant's testimony) at trial. See Goldsmith v. State, 651
A.2d 866, 874 (Md. 1995) (distinguishing between a defendant's
26
Other states have reached the same conclusion. See, e.g.,
Indiana v. Fromme, 949 N.E.2d 789 (Ind. 2011); People v. Hammon,
938 P.2d 986 (Cal. 1997); Dill v. People, 927 P.2d 1315 (Colo.
1996); State v. Percy, 548 A.2d 408 (Vt. 1988); Commonwealth v.
Wilson, 602 A.2d 1290 (Pa. 1992); United States v. Shrader, 716
F.Supp 2d 464 (S.D. W. Va. 2010); New Jersey v. E.P., 559 A.2d
447 (N.J. Super. Ct. App. Div. 1989) (holding that the defendant
had no right to in camera review of information protected by
attorney-client privilege).
44
No. 2011AP2680-CR
right of access to information during pre-trial discovery and a
defendant's right at trial to present a defense).
¶57 The Supreme Court of the United States has recognized
"the right of the defendant to present evidence." Taylor v.
Illinois, 484 U.S. 400, 409 (1988) (emphasis added). In
Washington v. Texas, 388 U.S. 14 (1967), the Court stated,
The right to offer the testimony of witnesses, and to
compel their attendance, if necessary, is in plain
terms the right to present a defense, the right to
present the defendant's version of the facts as well
as the prosecution's to the jury so it may decide
where the truth lies. Just as an accused has the right
to confront the prosecution's witnesses for the
purpose of challenging their testimony, he has the
right to present his own witnesses to establish a
defense. This right is a fundamental element of due
process of law.
Id. at 19. However, the Court has also recognized that a
defendant "does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence." Taylor, 484 U.S. at 410 (emphasis
added). Accordingly, a defendant's right to present evidence
must be balanced against other considerations. See Rock v.
Arkansas, 483 U.S. 44, 55-56 (1987) ("Of course, the right to
present relevant testimony is not without limitation. The right
'may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process.'" (quoting Chambers v.
Mississippi, 410 U.S. 284, 295 (1973)).
45
No. 2011AP2680-CR
¶58 Over a series of cases,27 the Supreme Court has
developed a test for determining when a defendant's right to
present evidence is violated: "[T]he exclusion of defense
evidence abridge[s] an accused's right to present a defense
'where the restriction is arbitrary or disproportionate to the
purposes' [it is] designed to serve, and the evidence
implicate[s] a sufficiently weighty interest of the accused."
Harris v. Thompson, 698 F.3d 609, 626 (7th Cir. 2012)
(alterations in original) (quoting United States v. Scheffer,
523 U.S. 303, 308-09 (1998) (quoting Rock, 483 U.S. at 56)).
¶59 For instance, in Washington v. Texas, the Court struck
down a state statute that barred the introduction of an alleged
accomplice's testimony. In declaring the statute
unconstitutional, the Court called the rule "arbitrary,"
27
See Washington v. Texas, 388 U.S. 14, 22-23 (1967)
(striking down an "arbitrary" law that disqualified an alleged
accomplice from testifying on the behalf of the defendant);
Chambers v. Mississippi, 410 U.S. 284, 296 n.8, 302 (1973)
(striking down a "archaic, irrational, and potentially
destructive" common-law rule that prevented the defendant from
impeaching his own witness); Rock v. Arkansas, 483 U.S. 44, 55,
61 (1987) (applying the arbitrary and disproportionate test, and
striking down a "per se" rule that excluded the defendant's
hypnotically refreshed testimony because the rule "arbitrarily"
excluded material evidence and because the State had not
"justified the exclusion of all of [the] defendant's
testimony"); Taylor v. Illinois, 484 U.S. 400, 414-16 (1988)
(applying the arbitrary and disproportionate test, and upholding
the trial judge's determination that the appropriate sanction
for the defendant's discovery violation was to exclude the
witness's testimony); Holmes v. South Carolina, 547 U.S. 319,
330-31 (2006) (applying the arbitrary and disproportionate test,
and striking down the State's rule barring third-party guilt
evidence).
46
No. 2011AP2680-CR
specifically commenting that "[t]he rule disqualifying an
alleged accomplice from testifying on behalf of the defendant
cannot even be defended on the ground that it rationally sets
apart a group of persons who are particularly likely to commit
perjury." Washington v. Texas, 388 U.S. at 22 (emphasis added).
Accordingly, the Court held that the statute "arbitrarily denied
[the defendant] the right to put on the stand a witness who was
physically and mentally capable of testifying to events that he
had personally observed, and whose testimony would have been
relevant and material to the defense." Id. at 23 (emphasis
added). In a footnote, the Court was careful to clarify that
"[n]othing in [its] opinion should be construed as disapproving
testimonial privileges, . . . which are based on entirely
different considerations . . . ." Id. at 23 n.21.
¶60 Chambers v. Mississippi serves as another example. In
Chambers, the Court analyzed Mississippi's common-law rule that
"a party may not impeach his own witness." 410 U.S. at 295. The
Court evaluated the basis for such a rule: "The rule rests on
the presumption——without regard to the circumstances of the
particular case——that a party who calls a witness 'vouches for
his credibility.'" Id. at 295 (citation omitted). As part of its
analysis, the Court remarked that the rule had been condemned by
other sources as "archaic, irrational, and potentially
destructive of the truth-gathering process." Id. at 296 n.8.
Moreover, the Court took notice of the fact that "Mississippi
ha[d] not sought to defend the rule or explain its rationale.
Nor ha[d] it contended that its rule should override the
47
No. 2011AP2680-CR
accused's right of confrontation." Id. at 297. As a result, the
Court concluded that the State's rule denied the defendant an
opportunity to present a complete defense. Id. at 302-03.
¶61 To summarize, the "mere invocation" of a
constitutional right "cannot automatically and invariably
outweigh countervailing public interests." Taylor, 484 U.S. at
414. Thus, a defendant's right to present a meaningful defense
is violated only when a rule or statute infringes upon a
"weighty interest of the accused" and is "arbitrary" or
"disproportionate to the purpose[] [it is] designed to serve."
Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotation
marks omitted) (quoting Scheffer, 523 U.S. at 308).
¶62 Here, Wis. Stat. § 905.04, the privilege statute, is
neither arbitrary nor disproportionate to the purpose it is
designed to serve. We have stressed that the "public policy
underpinning the privilege is to encourage patients to freely
and candidly discuss medical concerns with their physicians by
ensuring that those concerns will not unnecessarily be disclosed
to a third person." Steinberg v. Jensen, 194 Wis. 2d 439, 459,
534 N.W.2d 361 (1995).28
28
One court has noted,
The rationale for the psychologist-client privilege
was cogently stated in an Advisory Committee Note to
Proposed Federal Rule of Evidence 504:
Among physicians, the psychiatrist has a special need
to maintain confidentiality. His capacity to help his
patients is completely dependent upon their
willingness and ability to talk freely. This makes it
(continued)
48
No. 2011AP2680-CR
¶63 Additionally, the Supreme Court of the United States
has recognized a federal psychotherapist privilege. Jaffee v.
Redmond, 518 U.S. 1, 18 (1996). Throughout its opinion adopting
the privilege, the Court strongly emphasized the importance of
such a privilege:
Effective psychotherapy, by contrast, depends upon an
atmosphere of confidence and trust in which the
patient is willing to make a frank and complete
disclose of facts, emotions, memories, and fears.
Because of the sensitive nature of the problems for
which individuals consult psychotherapists, disclosure
of confidential communications made during counseling
sessions may cause embarrassment or disgrace. For this
reason, the mere possibility of disclosure may impede
development of the confidential relationship necessary
for successful treatment.
Id. at 10 (emphasis added). Moreover, the Court stressed,
difficult if not impossible for him to function
without being able to assure his patients
confidentiality and, indeed, privileged communication.
Where there may be exceptions to this general
rule . . . , there is wide agreement that
confidentiality is a sine qua non for successful
psychiatric treatment. The relationship may well be
likened to that of the priest-penitent or the lawyer-
client. Psychiatrists not only explore the very depths
of their patient's conscious, but their unconscious
feelings and attitudes as well. Therapeutic
effectiveness necessitates going beyond a patient's
awareness and, in order to do this, it must be
possible to communicate freely. A threat to secrecy
blocks successful treatment.
Commonwealth v. Kyle, 533 A.2d 120, 126 (Pa. Super Ct. 1987)
(alterations in original) (quoting Report No. 45, Group for the
Advancement of Psychiatry 92 (1960), quoted in Advisory
Committee's Notes to Proposed Rules, 56 F.R.D. at 242); see also
Commonwealth v. Wilson, 602 A.2d 1290, 1295 (Pa. 1992) (citing
Kyle and approving of its holding).
49
No. 2011AP2680-CR
Making the promise of confidentiality contingent upon
a trial judge's later evaluation of the relative
importance of the patient's interest in privacy and
the evidentiary need for disclosure would eviscerate
the effectiveness of the privilege. As we explained in
[another case], if the purpose of the privilege is to
be served, the participants in the confidential
conversation "must be able to predict with some degree
of certainty whether particular discussions will be
protected. An uncertain privilege, or one which
purports to be certain but results in widely varying
applications by the courts, is little better than no
privilege at all."
Id. at 17-18 (emphasis added) (quoting Upjohn Co. v. United
States, 449 U.S. 383, 393 (1981)). In short, Wis. Stat.
§ 905.04, the privilege statute, serves the crucial purpose of
ensuring that individuals——especially individuals who may be
suffering as a result of a traumatic experience, like sexual
assault——can freely and openly communicate with and be treated
by their mental health provider. See United States v. Shrader,
716 F. Supp. 2d 464, 473 (S.D. W. Va. 2010) ("[F]or [this
victim] and other alleged stalking victims to have to choose
whether to obtain counseling knowing that their alleged stalkers
can subpoena the records thereof would be no choice at all. This
chilling effect is precisely what the Supreme Court foresaw and
explicitly rejected in Jaffee.").29 Accordingly, § 905.04, the
29
See also State v. Percy, 548 A.2d 408, 415 (Vt. 1988)
("We are particularly solicitous of the need of a victim of a
sexual assault to seek and receive mental health counseling
without fear that her statements will end up in the public
record . . . . We are unwilling to require the victim to forego
counseling or risk disclosure absent the most compelling
justification——none has been asserted here.").
50
No. 2011AP2680-CR
privilege statute, is not arbitrary or disproportionate to the
purpose it was designed to serve.
F. THE SIMPLE REMEDY IF THE PEOPLE OF WISCONSIN WANT A BALANCING
TEST: HAVE THE LEGISLATURE AMEND WIS. STAT. § 905.04 TO INCLUDE
AN EXCEPTION.
¶64 Over the years, the Legislature has amended Wis. Stat.
§ 905.04, the privilege statute, numerous times, so the
Legislature can, if it wants, amend § 905.04 to include a
Shiffra/Green-like balancing test. Thus, should our
interpretation and application of § 905.04 and the Constitution
represent an "undesired result, the legislature may rectify the
situation" by amending § 905.04 to include a Shiffra/Green-like
balancing test as an exception to the general privilege rule.
Hamilton v. Hamilton, 2003 WI 50, ¶49, 261 Wis. 2d 458, 661
N.W.2d 832.
¶65 For example, Iowa's privilege statute contains a
Shiffra/Green-like exception to its general privilege rule. Iowa
Code § 622.10(4) states,
a. Except as otherwise provided in this subsection,
the confidentiality privilege under this section shall
be absolute with regard to a criminal action and this
section shall not be construed to authorize or require
the disclosure of any privileged records to a
defendant in a criminal action unless either of the
following occur:
(1) The privilege holder voluntarily waives the
confidentiality privilege
(2)(a) The defendant seeking access to privileged
records under this section files a motion
demonstrating in good faith a reasonable probability
that the information sought is likely to contain
exculpatory information that is not available from any
51
No. 2011AP2680-CR
other source and for which there is a compelling need
for the defendant to present a defense in the case.
Such a motion shall be filed not later than forty days
after arraignment under seal of the court. Failure of
the defendant to timely file such a motion constitutes
a waiver of the right to seek access to privileged
records under this section, but the court, for good
cause shown, may grant relief from such a waiver.
(b) Upon a showing of reasonable probability that
the privileged records sought may likely contain
exculpatory information that is not available from any
other source, the court shall conduct an in camera
review of such records to determine whether
exculpatory information is contained in such records.
(c) If exculpatory information is contained in
such records, the court shall balance the need to
disclose such information against the privacy interest
of the privilege holder.
(d) Upon the court's determination, in writing,
that the privileged information sought is exculpatory
and that there is a compelling need for such
information that outweighs the privacy interest of the
privilege holder, the court shall issue an order
allowing the disclosure of only those portions of the
records that contain the exculpatory information. The
court's order shall also prohibit any further
dissemination of the information to any person, other
than the defendant, the defendants' attorney, and the
prosecutor, unless otherwise authorized by the court.
b. Privileged information obtained by any means other
than as provided in paragraph "a" shall not be
admissible in any criminal action.
In simpler terms, Iowa allows a defendant to make a motion
"demonstrating in good faith a reasonable probability that the
information sought is likely to contain exculpatory information
that is not available from any other source and for which there
is a compelling need for the defendant to present a defense in
the case." Iowa Code § 622.10(4)(2)(a). If the defendant meets
52
No. 2011AP2680-CR
the requisite showing, "the court shall conduct an in camera
review of such records to determine whether exculpatory
information is contained in such records." Iowa Code
§ 622.10(4)(2)(b). Should the in camera review of the records
reveal exculpatory information, the court must next "balance the
need to disclose such information against the privacy interest
of the privilege holder." Iowa Code § 622.10(4)(2)(c). If "there
is a compelling need for such information that outweighs the
privacy interest of the privilege holder," then the court must
"issue an order allowing the disclosure of only those portions
of the records that contain the exculpatory information." Iowa
Code § 622.10(4)(2)(d).
¶66 In short, even though there is no constitutional basis
for Shiffra/Green, the Legislature could, if it wanted to, give
a defendant access to privileged information by following Iowa's
lead and amending Wisconsin's privilege statute.30 See Bostco LLC
v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶61, 350
Wis. 2d 554, 835 N.W.2d 160 ("When a statute [does not] to
address a particular situation, the remedy for the omission does
not lie with the courts. It lies with the legislature.").
G. THE OPPORTUNITY TO PRESENT A MEANINGFUL DEFENSE.
¶67 Before we conclude, we note that defendants will
certainly have an opportunity to present a meaningful defense
30
In addition to Iowa, Kentucky and Massachusetts have some
type of exception that would allow a court to conduct an in
camera review of a person's privileged mental health treatment
records. See Ky. R. Evid. 506(d)(2); Mass. R. Evid. 503(d)(8).
53
No. 2011AP2680-CR
without having access to privileged information via a motion for
in camera review.
¶68 First, all defendants are presumed innocent until
proven guilty. Taylor v. Kentucky, 436 U.S. 478, 483 (1978)
("The principle that there is a presumption of innocence in
favor of the accused is the undoubted law, axiomatic and
elementary, and its enforcement lies at the foundation of the
administration of our criminal law." (quoting Coffin v. United
States, 156 U.S. 432, 453 (1895)).
¶69 Second, all defendants have the right to physically
confront and cross-examine witnesses as well as have the right
to compel the attendance of witnesses at trial. See Ritchie, 480
U.S. at 51; Washington v. Texas, 388 U.S. at 19.
¶70 Third, the prosecutor and those acting on behalf of
the prosecution have a constitutionally-mandated duty to
disclose to the defendant exculpatory evidence under Brady. See
Brady, 373 U.S. at 87.
¶71 Fourth, a defendant could call other witnesses and
have them testify about the complainant's character for
truthfulness. See Wis. Stat. § 906.08 ("Except as provided in s.
972.11(2), the credibility of a witness may be attacked or
supported by evidence in the form of reputation or opinion, but
subject to the following limitations: (a) The evidence may refer
only to character for truthfulness or untruthfulness. . . . ").
¶72 Finally, Wisconsin and many other states have
mandatory reporting laws. See Wis. Stat. § 48.981(2). These laws
mandate that certain persons who have contact with a child
54
No. 2011AP2680-CR
report abuse. Id. For example, § 48.981(2m)(c)-(d), requires a
"health care provider who provides any health care services to a
child" or a "person who obtains information about a child who is
receiving or has received health care services from a health
care provider" to "report as required . . . if he or she has any
reason to suspect . . . [t]hat the child, because of his or her
age or immaturity, was or is incapable of understanding the
nature or consequences of sexual intercourse or sexual contact."
A defendant could ask a treatment provider who would have been
subject to the mandatory reporting requirement if he or she ever
reported the defendant to the authorities. In short, defendants,
including Lynch, have many other means by which to cast doubt on
a complainant's allegations and the State's case, thereby
affording defendants the opportunity to present a meaningful
defense.31
31
It is true that there are occasions when a defendant is
wrongfully accused of committing a crime, including a sexual
assault, and we realize that this is an emotionally appealing
argument that favors the dissent's position. This kind of
emotional appeal is heightened when members of this court use
inflammatory rhetoric.
Regardless, we expect the criminal justice system to
function as it is supposed to by weeding out occasions of false
accusations. This is why we have an abundance of constitutional
safeguards, such as the presumption of innocence, the right to
confront and cross examine witnesses, and the Brady requirement.
We have never before allowed the hypothetical idea that someone
might be wrongfully accused to obliterate our rules of evidence
(for example, hearsay) or our other privileges (for example, the
lawyer-client privilege). See Kyle, 533 A.2d at 131 n.15 ("We
note parenthetically that permitting in camera review of
information protected by the absolute privilege between
psychologist and client could possibly render other absolute
(continued)
55
No. 2011AP2680-CR
privileges subject to the same limitation."). Simply put, we do
not toss out our constitution, our rules, or our statutes solely
because a defendant might be wrongly accused; rather, we rely on
our criminal justice system and its adversarial process to
remove erroneous cases, including erroneous sexual assault
cases.
In cases like this one, neither the prosecutor nor the
defendant has access to a complainant's privileged mental health
treatment records. Accordingly, "[T]he privilege does not
unfairly place the defense in a disadvantageous position; like
the defense, the prosecution does not have access to the
[privileged] file and, thus, cannot use the information to make
its case." Kyle, 533 A.2d at 130; see State v. Maday, 179
Wis. 2d 346, 370-71, 507 N.W.2d 365 (Ct. App. 1993) ("A
defendant who is prevented from presenting testimony from an
examining expert when the state is able to present such
testimony is deprived of a level playing field. '[A] State may
not legitimately assert an interest in maintenance of a
strategic advantage over the defense, if the result of that
advantage is to cast a pall on the accuracy of the verdict
obtained.'" (emphasis added) (alteration in original) (quoting
Ake v. Oklahoma, 470 U.S. 68, 79) (1985))). Indeed, if the
prosecution had access, it may need to disclose the records
pursuant to Brady.
Brady is the reason Lynch already has access to some of the
complainant's mental health treatment records. Prior to the
complainant's father's trial, the complainant waived her
privilege, which allowed the State to obtain certain mental
health treatment records to prosecute her father. In the present
case, the State turned over all of the mental health treatment
records it had in its possession from when it prosecuted the
complainant's father.
Let us be clear: in this case, we do nothing more than
decline to create a constitutional right. We leave the question
of whether a Shiffra/Green-like exception to the privilege
statute is right for Wisconsin to the Legislature, which may, if
so inclined, create an exception to the statute it has amended
numerous times. Similarly, we leave the question of whether
there is a constitutional right to access privileged information
to the Supreme Court of the United States, which may, if so
inclined, declare that a constitutional right to this type of
information exists.
56
No. 2011AP2680-CR
III. CONCLUSION
¶73 To briefly summarize, we conclude that Lynch has no
right to access privileged information via a motion for in
camera review. Simply put, no constitutional provision affords
him such a right. Moreover, even if Lynch had a right, his right
would not automatically trump the privilege statute. Rather, his
right would need to be balanced against the privilege statute.
The Supreme Court of the United State's balancing test for
presentation of evidence cases instructs us to consider whether
the statute at hand is arbitrary or disproportionate to the
purpose it is designed to serve. Here, the privilege statute is
neither arbitrary nor disproportionate as it protects the free
flow of open and honest communication between a patient and his
or her physician. For these reasons, we would overrule
Shiffra/Green and its progeny.
By the Court.—As a result of a divided court, the law
remains as the court of appeals has articulated it.
57
No. 2011AP2680-CR.pdr
¶74 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). The
writing of Justice Shirley S. Abrahamson and Justice Ann Walsh
Bradley herein causes concern because it diminishes the
significant and sensitive issues for which review was granted;
attempts to demean the writings of other justices rather than
addressing legal reasoning they employ; and may evidence a
pattern of joint writing that is bottomed in a desire to injure
rather than to inform.
¶75 In this review, the court is faced with deciding
competing legal issues: Lynch's alleged constitutional right to
obtain the complainant's mental health treatment records to
defend against charges of sexual assault; the complainant's
privilege to withhold confidential mental health treatment
records; precedent that would bar the complainant from
testifying against Lynch if she does not waive the privilege she
holds in regard to her mental health treatment records; and
whether that precedent should be followed or modified. Justice
David Prosser, Justice Annette Ziegler and Justice Michael
Gableman have addressed these complex issues in various ways.
¶76 Justice Abrahamson and Justice A.W. Bradley
characterize their writings as "the Twilight Zone" and "the
court's imaginative zone." This defamatory labeling of
colleagues' writings does not address the legal issues the
parties asked us to review. However, it is the type of comment
that the press will seize upon and report over and over again.
Justice Abrahamson and Justice A.W. Bradley know what the press
1
No. 2011AP2680-CR.pdr
will do. They even cite to the 1959 television program to aid
the press in reporting their comments.
¶77 More importantly however, Justice Abrahamson's and
Justice A.W. Bradley's defamatory labeling of colleagues'
writings demonstrates a lack of respect for the very serious
constitutional and sensitive personal issues presented by the
parties who sought our review: a woman who claims repeated
sexual assault at the hands of Lynch and Lynch's claim that he
cannot adequately defend against her allegations without her
mental health treatment records.
¶78 None of the issues before us has anything to do with
the Twilight Zone or any other zone. Rather, they are
significant and complex issues that the court has repeatedly
struggled to address. See State v. Johnson, 2013 WI 59, 348
Wis. 2d 450, 832 N.W.2d 609 (per curiam); State v. Johnson, 2014
WI 16, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam) (opinion on
reconsideration).
¶79 And finally, Justice Abrahamson's and Justice A. W.
Bradley's combined writing herein may evince a pattern, wherein
they combine to mount personal attacks on colleagues, rather
than attacking reasoning other justices employ when deciding
issues presented to the court for review. See St. Croix Cty. v.
Michael D., 2016 WI 35, ¶53, 368 Wis. 2d 170, __ N.W.2d __
(Roggensack, C.J., concurring). Because transparency is helpful
to the reader, I write separately and also join the lead
opinion.
2
No. 2011AP2680-CR.ssa & awb
¶80 SHIRLEY S. ABRAHAMSON & ANN WALSH BRADLEY,
JJ. (concurring in part, dissenting in part). The petitioner,
State of Wisconsin, seeks review of a court of appeals' decision
that affirmed the circuit court's determinations: (1) that the
defendant made a sufficient showing entitling him to an in
camera review of the complainant's privileged mental health
treatment records; and (2) that the exclusive remedy for refusal
to disclose those records is witness preclusion.
¶81 We would affirm that part of the court of appeals'
decision that concluded, adhering to State v. Shiffra, 175
Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green,
2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, that the defendant
made a sufficient showing entitling him to an in camera review
of the complainant's privileged mental health records.
¶82 However, we would reverse that part of the court of
appeals' decision that concluded that exclusion of the
complainant's testimony is the only available remedy when the
complainant refuses to disclose the requested privileged mental
health treatment records.
¶83 In discussing these issues, we focus on the "lead
opinion" of Justice Michael J. Gableman (joined by two other
justices) even though it does not represent the views of a
majority of the justices. Indeed, Justice Gableman's opinion
disagrees with the mandate (the result) stated in his opinion.
The mandate affirms the court of appeals, and a majority of the
court would affirm, at least in part, the decision of the court
1
No. 2011AP2680-CR.ssa & awb
of appeals. Contrary to the mandate, Justice Gableman's
analysis and conclusion would reverse the decision of the court
of appeals.
¶84 The implications of mislabeling Justice Gableman's
three justice opinion as a "lead opinion" will be discussed
further below.
¶85 For the reasons set forth, we concur in part, dissent
in part, and write separately in an effort to explain what the
court does (and does not do) in this case.
I
¶86 In this case we are asked to consider whether a
defendant upon a sufficient showing can obtain disclosure of a
witness's mental health records when it is necessary for his or
her defense via a motion for in camera review. This is not a
new question unaddressed by Wisconsin precedent.
¶87 In State v. Shiffra, 175 Wis. 2d 600, 605, 499
N.W.2d 719 (Ct. App. 1993), the court of appeals determined that
a defendant is entitled to an in camera review of mental health
treatment records once the defendant makes a preliminary showing
that the sought-after evidence is material to his or her
defense. This court adopted Shiffra, with some modification, in
State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298.1
1
Green clarified that for an in camera review the defendant
must make a preliminary showing that there is "a reasonable
likelihood that the records contain relevant information
necessary to a determination of guilt or innocence and is not
merely cumulative to other evidence available to the defendant."
State v. Green, 2002 WI 68, ¶34, 253 Wis. 2d 356, 646
N.W.2d 298.
2
No. 2011AP2680-CR.ssa & awb
¶88 Wisconsin courts have relied on Shiffra for decades.
See, e.g., Johnson v. Rogers Mem'l 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. Solberg, 211
Wis. 2d 372, 386-87, 564 N.W.2d 775 (1997). Given that
reliance, extra weight must be accorded to the principle of
stare decisis (stand by things decided).
¶89 Yet, Justice Gableman's opinion would overrule this
long-standing precedent.2 The lengthy discussion of why Justice
Gableman's opinion would overrule Shiffra relegates Wisconsin's
jurisprudence on stare decisis to a footnote. This doctrine is
a necessary part of any analysis that attempts to justify
overruling a case that has been relied on for decades and cited
approximately 90 times by state courts (including Wisconsin
courts).
¶90 Further, the premise of Justice Gableman's opinion
that there is no constitutional right to access information in
criminal cases is a flawed overgeneralization. Justice
Gableman's op., ¶¶47, 55. It serves as a spring board enabling
Justice Gableman's opinion to reach an erroneous conclusion that
there is no constitutional basis for allowing a defendant access
to a complainant's mental health records.
¶91 Finally, Justice Gableman's opinion ignores a canon of
statutory construction, requiring statutes addressing the same
2
Only three justices voted to overrule the Shiffra/Green
procedure. Because we are unable to reach a consensus, the
decision of the court of appeals stands.
3
No. 2011AP2680-CR.ssa & awb
subject to be interpreted such that both statutes are operative.
Rather than reading the statutes to give legal effect to both,
Justice Gableman's opinion's analysis considers only one
statute, allowing it to reach its conclusion that the
Shiffra/Green procedure "cannot be grounded in any other legal
basis." Justice Gableman's op., ¶8.
¶92 Contrary to Justice Gableman's opinion, neither we nor
a majority of the court would discard our long-standing
precedent so easily. The Shiffra/Green procedure is a
reasonable answer to the difficult issue of how to balance
multiple competing interests. Although we concur believing that
Shiffra should be upheld, we yet again caution that Shiffra's
remedies are not limited to witness preclusion. Accordingly, we
respectfully dissent in part.
II
¶93 Absent from Justice Gableman's opinion is an analysis
of Wisconsin's jurisprudence on stare decisis. Instead, its
discussion of stare decisis focuses on quotations from the
United States Supreme Court. Justice Gableman's op., ¶39 n.18.
However, this court has provided more detailed guidance on how
stare decisis applies in our state. It has repeatedly explained
that the principle requires "special justification" to overrule
past decisions. See, e.g., State v. Luedtke, 2015 WI 42, ¶40,
362 Wis. 2d 1, 863 N.W.2d 592; State v. Young, 2006 WI 98, ¶51,
294 Wis. 2d 1, 717 N.W.2d 729; Bartholomew v. Wis. Patients
Comp. Fund, 2006 WI 91, ¶32, 293 Wis. 2d 38, 717 N.W.2d 216.
4
No. 2011AP2680-CR.ssa & awb
¶94 We have indicated that the reasons for departing from
stare decisis typically include: "changes or developments in
the law that undermine the rationale behind a decision"; "the
need to make a decision correspond to newly ascertained facts";
"a showing that a decision has become detrimental to coherence
and consistency in the law"; "a showing that a decision is
unsound in principle"; and "a showing that a decision is
unworkable in practice." Young, 294 Wis. 2d 1, ¶51 n.16 (citing
Johnson Controls, Inc. v. Emp'rs. Ins., 2003 WI 108, ¶¶98-99,
264 Wis. 2d 60, 665 N.W.2d 257).
¶95 The body of Justice Gableman's opinion does not point
to any of these reasons for departing from stare decisis, rather
it explains that it would overrule Shiffra because Shiffra
relied on Pennsylvania v. Ritchie, 480 U.S. 39 (1987), a case
involving distinguishable circumstances. Justice Gableman's
opinion asserts that Ritchie is an "untenable foundation" for
Shiffra's procedure and "never should have been stretched to
cover privileged records held by agencies far removed from
investigative and prosecutorial functions." Justice Gableman's
op., ¶¶36, 39. In a footnote, it adds that Shiffra is unsound
in principle. Id., ¶39 n.19.
¶96 We cannot agree that the Shiffra court's decision to
extend United States Supreme Court precedent to a somewhat
analogous situation is "untenable" or "unsound." As detailed in
Justice Ziegler's "dissent" and discussed in Justice Prosser's
"dissent," Ritchie does not foreclose its application to a
5
No. 2011AP2680-CR.ssa & awb
broader set of circumstances. Justice Ziegler's "dissent,"
¶¶28-33; Justice Prosser's "dissent," ¶¶7-8.
¶97 This point is underscored by the fact that Shiffra's
approach was not unique. Several courts have extended Ritchie's
holding to mental health records kept by private entities. See,
e.g., State v. Kelly, 545 A.2d 1048, 1056 (Conn. 1988); Burns v.
State, 968 A.2d 1012, 1024 (Del. 2009); People v. Bean, 560
N.E.2d 258, 273 (Ill. 1990); Commonwealth v. Barroso, 122
S.W.3d 554, 564 (Ky. 2003); Cox v. State, 849 So. 2d 1257, ¶53
(Miss. 2003); State v. Cressey, 628 A.2d 696, 703-04 (N.H.
1993); State v. Rehkop, 908 A.2d 488, 495-96 (Vt. 2006); Gale v.
State, 792 P.2d 570, 581 (Wyo. 1990).
¶98 Given that Wisconsin courts have relied on Shiffra for
decades, extra weight must be accorded to the principle of stare
decisis. The factual distinctions between Ritchie and Shiffra
fall short of its special justification requirement.
¶99 Perhaps Justice Gableman's opinion omits an analysis
of Wisconsin's jurisprudence on stare decisis because it would
inexorably lead to a different conclusion. In essence, Justice
Gableman's opinion is anchored to the belief that Shiffra was
wrongly decided.
¶100 Stare decisis has been heralded as a cornerstone of
this state's jurisprudence since our earliest days of statehood.
In 1859 the Wisconsin Supreme Court declared: "Stare decisis is
the motto of courts of justice." Ableman v. Booth, 11
Wis. (*498) 517, (*522) 541 (1859).
6
No. 2011AP2680-CR.ssa & awb
¶101 The doctrine requires fidelity to the rule of law.
Because Shiffra is well-established precedent, the question is
not who has the better argument today but "whether today's
["lead opinion"] has come forward with the type of extraordinary
showing that this court has historically demanded before
overruling one of its precedents." Payne v. Tennessee, 501 U.S.
808, 848 (1991) (Marshall, J., dissenting). The answer is
clear: it has not.
¶102 Nothing of legal consequence has changed since
Shiffra. The only change has been in the composition of the
court.
III
¶103 Justice Gableman's opinion also errs by making
overgeneralized statements about a defendant's right to access
information in order to claim that there is no constitutional
basis for allowing a defendant access to mental health treatment
records. It broadly provides that there is no constitutional
right to access information in criminal cases. Justice
Gableman's op., ¶¶47, 55. Further, it claims that "a defendant
is entitled to access information only to the extent outlined in
Wis. Stat. § 971.23, our criminal discovery statute." Justice
Gableman's op., ¶47; see also Justice Gableman's op., ¶54
("Discovery is purely statutory").
¶104 These statements overlook past precedent discussing
criminal defendants' due process rights. In State v. Maday, the
court held that "pretrial discovery is a fundamental due process
right." Maday, 179 Wis. 2d 346, 354, 507 N.W.2d 365 (Ct. App.
7
No. 2011AP2680-CR.ssa & awb
1993). That case considered whether a defendant could require a
victim to undergo a pretrial psychological evaluation when the
state gives notice that it intends to introduce evidence
generated by an exam of the victim by its own experts.3 The
court answered this question in the affirmative. It explained
that due process accords a defendant the opportunity to give
relevant evidence at trial and a defendant could not do so
without having the opportunity to first discover it.4
¶105 This court quoted Maday with approval in State v.
Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457. Schaefer
agreed that "[p]roviding a defendant with meaningful pretrial
discovery underwrites the interest of the state in guaranteeing
that the quest for the truth will happen during a fair trial."5
3
State v. Maday, 179 Wis. 2d 346, 349, 507 N.W.2d 365 (Ct.
App. 1993).
4
Maday, 179 Wis. 2d at 357.
5
State v. Schaefer, 2008 WI 25, ¶23, 308 Wis. 2d 279, 746
N.W.2d 457 (quoting Maday, 179 Wis. 2d at 354-55) (emphasis
omitted).
Curiously, Justice Gableman's opinion cites Schaefer as a
basis for its statement that "a defendant is entitled to access
information only to the extent outlined in Wis. Stat. § 971.23."
Justice Gableman's op., ¶47. However, the comments in Schaefer
referenced by Justice Gableman's opinion were made in the
context of discussing whether there is a right to discovery
prior to a preliminary examination. Because the constitutional
right to compulsory process applies to trials and not
preliminary examinations, it determined that Wis. Stat.
§ 971.23(1) (requiring the prosecution to provide discovery
materials within a reasonable time before trial) and Wis. Stat.
§ 971.31(5)(b) (barring discovery motions at preliminary
examinations and prior to the filing of an information)
governed.
8
No. 2011AP2680-CR.ssa & awb
¶106 Similar sentiments were expressed in State v.
Migliorino, 170 Wis. 2d 576, N.W.2d 678 (Ct. App. 1992). In
that case the defendant had been charged with trespass to a
medical facility, which required a showing that the entry
"tend[ed] to create or provoke a breach of the peace."6 The
defendant sought the identities of the patients present when she
entered the facility in order to dispute that element of the
charge. Thus, the issue before the court was whether a
defendant had the right to discover the identity of the
patients.
¶107 The court observed that the compulsory process right,
is "in plain terms the right to present a defense."7 That right,
in turn, "is fundamental to due process."8 Accordingly, it
explained that "[t]he concomitant issue of access to the
identity of witnesses, as to whom the compulsory-process right
would apply, is generally analyzed against the framework of
'fundamental fairness' guaranteed by due process."9 Observing
that "[i]t would be a bizarre rule indeed that gave defendants a
compulsory-process right to call witnesses but which also
withheld from them the ability to discover the identity of those
witnesses," the Migliorino court determined that at the very
6
Migliorino, 170 Wis. 2d at 592.
7
Migliorino, 170 Wis. 2d at 586 (quoting Washington v.
Texas, 388 U.S. 14, 19 (1967)).
8
Migliorino, 170 Wis. 2d at 586.
9
Migliorino, 170 Wis. 2d at 586.
9
No. 2011AP2680-CR.ssa & awb
least, the defendant was entitled to an in camera hearing to
determine whether any of the patients present had knowledge of
the "circumstances" of the defendant's entry.10
¶108 To be clear, this court has observed the "general
rule" that there is no "broad right of discovery" in criminal
cases. State v. Miller, 35 Wis. 2d 454, 474, 151 N.W.2d 157
(1967) (emphasis added). However, a general rule against broad
discovery does not preclude the possibility of scenarios where
defendants are entitled to information. As Maday and Migliorino
demonstrate, due process can require limited access to
information in certain circumstances. Accordingly, Justice
Gableman's opinion's premise that there is no constitutional
right to access information in criminal cases, is a flawed
overgeneralization. Justice Gableman's op., ¶¶47, 55.
IV
¶109 In addition to making overgeneralizations which
overlook Wisconsin precedent, Justice Gableman's opinion's
analysis ignores a canon of statutory construction. It is well-
established that statutes addressing the same subject should be
read in pari materia, such that both statutes are operative.
Kolupar v. Wilde Pontiac Cadillac, Inc., 2007 WI 98, ¶28, 303
Wis. 2d 258, 735 N.W.2d 93.
¶110 Yet, although Justice Gableman's opinion recognizes
that there are two related statutes at issue in this case——Wis.
Stat. § 146.82, which makes patient health care records
10
Migliorino, 170 Wis. 2d at 586, 595.
10
No. 2011AP2680-CR.ssa & awb
confidential, and Wis. Stat. § 905.04, which accords a patient
the privilege of refusing to disclose such confidential
information——its analysis considers only the statute creating
the privilege. Justice Gableman's op., ¶¶19, 56-63.
¶111 Our precedent is clear that these two statutes must be
interpreted together. We have explained that the principle of
in pari materia applies because together the statutes "represent
a collective statement as to the reach and limits of the
confidentiality and privilege which attach to [health care]
records or communications." State v. Denis L.R., 2005 WI 110,
¶57 n.21, 283 Wis. 2d 358, 699 N.W.2d 154 (quoting State v.
Allen, 200 Wis. 2d 301, 309, 546 N.W.2d 517 (Ct. App. 1996));
see also Johnson v. Rogers Mem'l Hosp., 283 Wis. 2d 384, ¶36;
Justice Prosser's "dissent," ¶12.
¶112 Although Wis. Stat. § 905.04 does not include an
exception to the privilege permitting access to mental health
records when they are necessary for a defense, such an exception
can be found in the confidentiality statute. Wisconsin Stat.
§ 146.82(2)(a)4. provides that patient health care records shall
be released "[u]nder a lawful order of a court of record."
Nowhere does Justice Gableman's opinion discuss this language or
how it should be interpreted alongside the privilege statute so
that it still has meaning. Without such an analysis, Justice
Gableman's opinion is incomplete.
V
¶113 Contrary to Justice Gableman's opinion, we would not
overrule Shiffra. There are strong interests implicated when a
11
No. 2011AP2680-CR.ssa & awb
defendant seeks a witness's mental health treatment records.
For defendants, it is the interest in being able to present a
complete defense. See Holmes v. South Carolina, 547 U.S. 319,
324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)
("Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants 'a meaningful opportunity to
present a complete defense.'")); State v. Behnke, 203
Wis. 2d 43, 56, 553 N.W.2d 265 (Ct. App. 1996) ("[T]he Due
Process Clause guarantees the defendant a right to a trial based
on truth seeking which can only be accomplished by allowing him
or her to present a complete defense.").
¶114 At the same time, patients have an interest in keeping
their mental health treatment records private. Due to the
sensitive nature of the problems for which patients seek mental
health treatment, "disclosure of confidential communications
made during counseling session may cause embarrassment or
disgrace." Jaffee v. Redmond, 518 U.S. 1, 10 (1996).
Accordingly, the physician-patient privilege in Wis. Stat.
§ 905.04 was created "to encourage patients to freely and
candidly discuss medical concerns with their physicians by
ensuring that those concerns will not unnecessarily be disclosed
to a third person." Steinberg v. Jensen, 194 Wis. 2d 439, 459,
534 N.W.2d 361 (1995).
¶115 The Shiffra procedure takes both of these interests
into account and prescribes a reasonable balance. Solberg, 211
12
No. 2011AP2680-CR.ssa & awb
Wis. 2d at 387 ("Such a procedure strikes an appropriate balance
between the defendant's due process right to be given a
meaningful opportunity to present a complete defense and the
policy interests underlying the Wis. Stat. § 904.05(2)
privilege.").
¶116 It is consistent with the approach taken by a majority
11
of state courts. They "have held that a criminal defendant,
upon a preliminary showing that the records likely contain
exculpatory evidence, is entitled to some form of pretrial
discovery of a prosecution witness's mental health treatment
records that would otherwise be subject to an 'absolute'
privilege." Barroso, 122 S.W.3d at 561. In camera judicial
review of a victim's privileged records "currently represents
the most common method of balancing statutory privileges against
the defendant's trial rights." State v. Pratt, 669 A.2d 562,
11
See e.g., D.P. v. State, 850 So. 2d 370, 373 (Ala. Crim.
App. 2002); State v. Slimskey, 779 A.2d 723, 732 (Conn. 2001);
Burns v. State, 968 A.2d 1012, 1024 (Del. 2009); Lucas v. State,
555 S.E.2d 440, 446 (Ga. 2001); People v. Bean, 560 N.E.2d 258,
273 (Ill. 1990); State v. Thompson, 836 N.W.2d 470, 486 (Iowa
2013); Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky. 2003);
State v. Johnson, 102 A.3d 295, 297 (Md. 2014); State v. Hummel,
483 N.W.2d 68, 72 (Minn. 1992); Cox v. State, 849 So. 2d 1257,
1272 (Miss. 2003); State v. Duffy, 6 P.3d 453, 458 (Mont. 2000);
State v. Gagne, 612 A.2d 899, 901 (N.H. 1992); Kinsella v.
Kinsella, 696 A.2d 556, 570 (N.J. 1997); State v. Gonzales, 912
P.2d 297, 302 (N.M. Ct. App. 1996); People v. Viera, 133
A.D.3d 622, 623 (N.Y. App. Div. 2015); State v. Burnham, 58
A.3d 889, 898 (R.I. 2013); State v. Middlebrooks, 840
S.W.2d 317, 333 (Tenn. 1992), superseded on other grounds by
Tenn. Code Ann. § 39-13-392; State v. Cramer, 44 P.3d 690, 695-
96 (Utah 2002); State v. Barbera, 872 A.2d 309, 313 (Vt. 2005);
Gale v. State, 792 P.2d 570, 581 (Wyo. 1990).
13
No. 2011AP2680-CR.ssa & awb
571 (Conn. 1995). We see no reason to depart from our precedent
and end this practice in Wisconsin.
¶117 Because we would not overrule the Shiffra/Green
procedure, we turn to the question left unaddressed by Justice
Gableman's opinion: is witness preclusion the only remedy
available to the circuit court when a complainant refuses to
waive the physician-patient privilege?
¶118 We have addressed this issue before. When this court
granted the motion for reconsideration in State v. Johnson, we
wrote separately to explain that witness preclusion was not the
only remedy intended by the Shiffra court. 2014 WI 16, ¶19, 353
Wis. 2d 119, 846 N.W.2d 1 (Ann Walsh Bradley, J., concurring in
part, dissenting in part, joined by Abrahamson, C.J.) ("The
court in Shiffra expressly contemplated that a variety of
sanctions may be appropriate depending on the circumstances.").
¶119 In Shiffra, the court determined that it was not a
misuse of the circuit court's discretion to suppress the
victim's testimony as a sanction for her refusal to release the
records. 175 Wis. 2d at 612. Nowhere did it limit the remedies
available to witness preclusion. Rather, its language made
clear that it was discussing the facts of the case before it:
The only issue remaining is whether the trial court
misused its discretion when it suppressed Pamela's
testimony as a sanction for her refusal to release the
records. In this situation, no other sanction would be
appropriate. The court did not have the authority to
hold Pamela in contempt because she is not obligated
to disclose her psychiatric records. An adjournment in
this case would be of no benefit because the sought-
after evidence would still be unavailable. Under the
circumstances, the only method of protecting Shiffra's
14
No. 2011AP2680-CR.ssa & awb
right to a fair trial was to suppress Pamela's
testimony if she refused to disclose her records.'
Id. (emphasis added).
¶120 The author of Shiffra later clarified that the case
did not require suppression. State v. Johnson, No. 2011AP2864-
CRAC, unpublished slip op., ¶¶23-28 (Wis. Ct. App. Apr. 18,
2012) (Brown, C.J., dissenting). He proposed an alternative
remedy, whereby "if an alleged victim refuses to release medical
or counseling records to the court for in camera inspection, the
court may compel release anyway, pursuant to Wis.
Stat.§ 146.82(2)(a)4." Id., ¶24. Acknowledging that Wis. Stat.
§ 146.82 generally will not trump the physician-patient
privilege, he explained that where the privilege is trumped by
constitutional concerns, a court may utilize Wis. Stat.
§ 146.82(2)(a)(4) in order to conduct an in camera review. Id.,
¶25.
¶121 We would adopt this approach. It harmonizes the two
statutes addressing mental health treatment records and accounts
for defendants' right to present a complete defense. Further,
it alleviates the state's concern that the Shiffra procedure
allows witnesses to thwart prosecution. By giving the court the
power to review some mental health treatment records in camera
when a defendant has established a constitutional right to that
review, Judge Brown's remedy leaves the balancing of the
competing interests in the hands of the court.
¶122 As Judge Brown observed, "[t]he courts are especially
equipped for this task. Indeed, it is what judges do."
Johnson, No. 2011AP2864-CRAC, ¶27. We agree.
15
No. 2011AP2680-CR.ssa & awb
VI
¶123 In closing, we turn to the implications of mislabeling
Justice Gableman's three-justice opinion as a "lead opinion."
Rather than sow the seeds of confusion by issuing our opinions
seriatim with Justice Gableman's opinion occupying the "lead"
role, we should hew to our two-year-old precedent in Johnson,
353 Wis. 2d 119, ¶1 (on reconsideration). In Johnson, we
addressed almost identical factual and legal issues, and issued
a per curiam opinion stating that because the court was
deadlocked, "the court of appeals decision must be affirmed."12
¶124 Reading Justice Gableman's writing, designated as the
"lead" opinion, and reading Justice Prosser's and Justice
Ziegler's writings, self-designated (and so dubbed by Justice
Gableman) as "dissenting" opinions makes us feel like we've
stepped into "the Twilight Zone."13 As Justices Prosser and
Ziegler explain, they are dissenting because they disagree with
Justice Gableman's writing; they are not dissenting from the
court's bottom line, which affirms the decision of the court of
appeals.
¶125 All appearances to the contrary, the mandate (the
result) in this case is "the decision of the court of appeals is
affirmed." Justice Gableman's opinion, referred to as the "lead
12
State v. Johnson, 2014 WI 16, ¶1, 353 Wis. 2d 119, 846
N.W.2d 1 (on reconsideration).
13
CBS, The Twilight Zone (1959).
16
No. 2011AP2680-CR.ssa & awb
opinion," disagrees with this result and is in reality a
dissent.14
¶126 Three separate writings (Justice Ziegler's, Justice
Prosser's, and ours) concur (at least in part) in the result and
with the decision of the court of appeals. But for some
unstated reason, both Justice Prosser's and Justice Ziegler's
writings are labeled (and referred to in the "lead opinion") as
"dissents."15
¶127 By failing to acknowledge the real positions of the
justices, we are, in the words of Rod Serling, the creator of
The Twilight Zone, "traveling through another
dimension . . . into a . . . land whose [only] boundaries are
that of imagination."
¶128 In this zone of the court's imagination, Justice
Gableman's opinion (which represents the views of two other
justices, Patience Drake Roggensack and Rebecca G. Bradley) is
the "lead opinion," even though these three justices disagree
with the mandate, which leaves "the law . . . as the court of
appeals has articulated it" intact.
¶129 The court of appeals in this case followed Shiffra and
Green.16 Justice Gableman's "lead opinion," however, would
overturn Shiffra and Green.
14
Compare Justice Gableman's opinion, n.1.
15
See Justice Gableman's opinion, ¶¶16 n.15, 39 n.17 & 18,
72 n.31.
16
See State v. Lynch, 2015 WI App 2, ¶¶8, 44-45, 359
Wis. 2d 482, 859 N.W.2d 125.
17
No. 2011AP2680-CR.ssa & awb
¶130 Normally, we have a word for opinions that do not
garner the votes of a majority of the participating justices and
disagree with the mandate of the court: We call them
"dissents." For some unstated reason, Justice Gableman does not
label his writing either a dissent or a concurrence, thus
masking its true nature.
¶131 Likewise, in the court's imaginative zone, the
opinions of Justices Prosser and Ziegler are "dissents." Yet
they agree with the outcome of this case and would affirm the
decision of the court of appeals, which followed Shiffra and
Green. We would also affirm the part of the decision of the
court of appeals that followed Shiffra and Green as well,
although we would reverse the part of the decision of the court
of appeals that held that witness preclusion is the sole remedy
available under Shiffra and Green.17
¶132 Outside this imaginative zone, we have a word for
opinions that do not garner the votes of a majority but agree
with the mandate of the court: We call them "concurrences."
¶133 For some unstated reason, this label is not applied to
Justice Prosser's and Justice Ziegler's writings.
¶134 As Justice Ziegler writes, acknowledging the absurdity
of labelling her writing as a "dissent" when she agrees with the
result of this case: "Hence, although I write in dissent, I
dissent from the lead opinion; I agree with the functional
outcome of this case."18
17
See supra ¶42.
18
Justice Ziegler's "dissent," ¶47 n.14.
18
No. 2011AP2680-CR.ssa & awb
¶135 The "functional outcome of this case" is that we
affirm the court of appeals. In fact, that is the outcome our
precedent requires when, as happened just two years ago in an
almost identical factual situation raising the same legal
issues, the court deadlocked: "the court of appeals decision
must be affirmed." See Johnson, 353 Wis. 2d 119, ¶1.
¶136 In Johnson, the court (sitting with just five members)
initially issued a per curiam opinion holding that, under
varying rationales, (1) a circuit court may not require a victim
to produce privately held, privileged mental health records for
in camera review; and (2) the victim may testify even if he or
she does not produce privately held, privileged mental health
records for in camera review. State v. Johnson, 2013 WI 59,
¶¶5-7, 348 Wis. 2d 450, 832 N.W.2d 609.
¶137 Subsequently, however, as we stated previously, the
court granted reconsideration and modified the prior per curiam,
asserting that "[v]ery simply stated, the court of appeals is
affirmed because no three justices[, a majority on a five member
court,] conclude either (1) that under Shiffra, the victim must
produce the records if she is to testify, or (2) that under
Green, the victim need not produce the records in order to
testify." Johnson, 353 Wis. 2d 119, ¶3 (on reconsideration).
"As a result, since a majority of the court has not reached
consensus under precedent so as to decide the issue presented
and the court is deadlocked, the decision of the court of
appeals must be affirmed." Johnson, 353 Wis. 2d 119, ¶13 (on
reconsideration).
19
No. 2011AP2680-CR.ssa & awb
¶138 This case raises the same issues as Johnson, only this
time with a seven-member court. Following Johnson as precedent,
we should issue a per curiam opinion affirming the court of
appeals. Any justice could, if the justice wished, write
separately. The justices' separate writings would appear as
concurrences or dissents in order of seniority, as is our usual
practice.
¶139 But rather than hew to our precedent in Johnson, the
court sows the seeds of confusion and issues our opinions
seriatim with Justice Gableman's opinion (a dissenting opinion
issued without any label) being called the "lead opinion."
¶140 The proliferation of separate writings (as in this
case) and "lead opinions" is emblematic of the court's work this
"term" (September 2015 to June 2016).
¶141 Although we have not done a statistical analysis, our
perception is that few of the court's decisions this term have
been unanimous without any separate writings,19 and several,
including this case, have begun with "lead opinions." See,
e.g., Singh v. Kemper, 2016 WI 67, ___ Wis. 2d ___, ___
N.W.2d ___ (lead op. of Ann Walsh Bradley, J., joined by
Abrahamson, J.); Lands' End, Inc. v. City of Dodgeville, 2016 WI
64, ___ Wis. 2d ___, ____ N.W.2d ____ (lead op. of Abrahamson,
J., joined by Ann Walsh Bradley, J., and Gableman, J.); Coyne v.
Walker, 2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520 (lead op. of
19
See, e.g., State v. Tourville, 2016 WI 17, 367
Wis. 2d 285, 876 N.W.2d 735 (unanimously affirming the court of
appeals).
20
No. 2011AP2680-CR.ssa & awb
Gableman, J. with Abrahamson, J., Ann Walsh Bradley, J., and
Prosser, J., each concurring separately); State v. Smith, 2016
WI 23, 367 Wis. 2d 483, 878 N.W.2d 135 (lead op. of Roggensack,
C.J., joined by Prosser, J., and Gableman, J.); United Food &
Comm. Workers Union, Local 1473 v. Hormel Foods Corp., 2016 WI
13, 367 Wis. 2d 131, 876 N.W.2d 99 (lead op. of Abrahamson, J.,
joined by Ann Walsh Bradley, J.); Hoffer Props., LLC v. DOT,
2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533 (lead op. of
Gableman, J., joined by Roggensack, C.J., and Ziegler, J.).
¶142 The phrase "lead opinion" is not, as far as we are
aware, defined in our Internal Operating Procedures or elsewhere
in the case law. Our Internal Operating Procedures (IOPs) refer
to "lead opinions," but only in stating that if, during the
process of circulating and revising opinions, "the opinion
originally circulated as the majority opinion does not garner
the vote of a majority of the court, it shall be referred to in
separate writings as the 'lead opinion.'" Wis. S. Ct. IOP
II.G.4.20
¶143 Prior to this case, we would have said that a lead
opinion is one that states (and agrees with) the mandate of a
majority of the justices, but represents the reasoning of less
than a majority of the participating justices. So, for example,
in a case with six justices participating, if three justices
join one opinion affirming the decision of the court of appeals,
two justices join a different opinion affirming the decision of
20
Our internal operating procedures are contained in volume
6 of the Wisconsin Statutes.
21
No. 2011AP2680-CR.ssa & awb
the court of appeals, and one justice dissents, there is a
single mandate——the decision of the court of appeals is
affirmed——but no majority opinion. See Hoffer, 366 Wis. 2d 372.
Rather, one of the opinions affirming the decision of the court
of appeals will be the lead opinion.
¶144 This case, however, unnecessarily complicates our
understanding of what is a "lead opinion." Now, an opinion that
disagrees with the mandate and argues for an outcome with which
a majority of the court disagrees can be designated a "lead
opinion."
¶145 The absence of an agreed-upon definition for "lead
opinion" has the potential to cause confusion among the bench,
the bar, and the public. Also, the precedential effect (or lack
thereof) of a "lead opinion" is uncertain. Are lead opinions in
this court comparable to plurality opinions in the United States
Supreme Court?21 Apparently, the court of appeals considers a
plurality decision of this court persuasive but does not always
consider it binding. See, e.g., State v. King, 205 Wis. 2d 81,
21
See Marks v. United States, 430 U.S. 188, 193 (1977)
("When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, 'the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds . . . .'") (quoting Gregg v. Georgia, 428 U.S. 153, 169
n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).
For discussions by this court of the precedential effect of
plurality opinions in the United States Supreme Court, see, for
example, State v. Griep, 2015 WI 40, ¶36, 361 Wis. 2d 657, 863
N.W.2d 567; State v. Deadwiller, 2013 WI 75, ¶30, 350
Wis. 2d 138, 834 N.W.2d 362.
22
No. 2011AP2680-CR.ssa & awb
88-89, 555 N.W.2d 189 (Ct. App. 1996) (citing State v. Dowe, 120
Wis. 2d 192, 194, 352 N.W.2d 660 (1984)).
¶146 We would avoid the unnecessary confusion caused by
Justice Gableman's dissenting "lead" opinion, and issue a simple
per curiam opinion stating, as we did in Johnson, that "the
court of appeals decision must be affirmed."22 Each justice
could attach his or her separate writing to this per curiam
explaining how she or he would decide the case. This procedure
would avoid the confusion inherent in conferring, for some
unstated reason, "lead opinion" status on Justice Gableman's
dissenting opinion.
¶147 In closing, we note another way in which this case is
emblematic of the court's work during this term.
¶148 Despite one of the lightest (if not the lightest) case
loads ever in modern times and the adoption (by a divided court)
of a new procedure for circulating and mandating opinions on
September 25, 2014 (ostensibly designed to avoid the June
"crush"), around 40 percent of our decisions (including the case
before us) will be completed and released in June and July.23
This is true even though the court no longer discusses draft
22
Johnson, 353 Wis. 2d 119, ¶1.
23
All of the justices' work on opinions is completed on or
before June 30. Because the number of mandates is limited each
week, several opinions finished by June 30 are released in July.
23
No. 2011AP2680-CR.ssa & awb
opinions in conference unless a majority of justices vote to do
so.24
¶149 In sum, failing to issue a per curiam opinion here
raises the potential for significant confusion over the outcome
of this case, the implication of our decision for future cases,
and the definition of "lead opinion," a term that has seen
increasing use of late. These issues should be approached by
the court and the justices in a descriptive, analytical, and
historical manner, free from divisiveness or offensive
posturing, personal attacks, and false accusations.
¶150 Engaging in or responding to such personal attacks and
accusations neither sheds light on the inquiry before us nor
promotes public trust and confidence in the court.
¶151 For the reasons set forth, we concur in part, dissent
in part, and write separately to address institutional concerns.
24
The court's procedures for circulating and mandating
opinions have been written about before. See, e.g., State v.
Gonzalez, 2014 WI 124, ¶¶25-40, 359 Wis. 2d 1, 856 N.W.2d 580
(Abrahamson, C.J., concurring) (setting forth the procedure in
full). Others have noted the light case load this term. See
Alan Ball, Justice Abrahamson's Concerns Over the Docket – An
Update, SCOWstats (Mar. 20, 2016),
http://www.scowstats.com/2016/03/20/justice-abrahamsons-
concerns-over-the-docket-an-update/.
24
No. 2011AP2680-CR.dtp
¶152 DAVID T. PROSSER, J. (dissenting). The principal
issue on review is whether the decisions in State v. Shiffra,
175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v.
Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298 (2002),
should be overruled. Although the lead opinion by Justice
Michael J. Gableman makes a number of compelling arguments about
the foundation and lineage of Shiffra and Green, as well as
their effect on Wisconsin law, I am ultimately persuaded that
the better course for this court is to address the concerns
arising from these opinions rather than to strike them down and
start over. In my view, overruling the opinions is more likely
to intensify controversy than to resolve it, as overruling would
seriously undermine a number of prior decisions and would invite
a host of new theories to protect criminal defendants at trial.
I
¶153 Because of divisions within the court, Justice
Gableman was assigned the responsibility of writing a lead
opinion. Two justices1 have joined him in the following
conclusions:
Shiffra/Green improperly relied on [Pennsylvania v.
Ritchie, 480 U.S. 39 (1987),] when it invented a right
to access privileged information (specifically a
complainant's privileged mental health treatment
records) via a motion for in camera review. We
further conclude that Shiffra/Green cannot be grounded
in any other legal basis, specifically any other
constitutional provision.
1
Chief Justice Patience Drake Roggensack and Justice
Rebecca G. Bradley.
1
No. 2011AP2680-CR.dtp
Lead op., ¶8. I dissent from these conclusions, which would
provide a basis for overruling Shiffra and Green and would
concomitantly reverse the decision of the court of appeals.2
¶154 I read Justice Gableman's opinion as making the
following observations about the Ritchie case:
(1) Defendant Ritchie sought materials from the
"investigative files" of Children and Youth Services
(CYS), "a protective service agency charged with
investigating cases of suspected mistreatment and
neglect." Ritchie, 480 U.S. at 43. The victim in
Ritchie was referred to CYS by police.
(2) The Pennsylvania statute pertaining to CYS provided
that "all reports and other information obtained in
the course of a CYS investigation" were "confidential,
subject to 11 specific exceptions." Id. One of these
exceptions was release "pursuant to a court order."
In other words, courts were specifically authorized by
2
Two other justices, Shirley S. Abrahamson and Ann Walsh
Bradley, would reverse the decision of the court of appeals in
part for a wholly different reason. Like Justice Annette
Kingsland Ziegler and the writer, Justices Abrahamson and Ann
Walsh Bradley would not overrule Shiffra and Green. Justices
Abrahamson and Ann Walsh Bradley's concurrence/dissent, ¶2.
They would, however, reverse the decision of the court of
appeals in part to permit a circuit court to compel release of
the records pursuant to Wis. Stat. § 146.82(2)(a)4. when a
complainant refuses to release records to the court for an in
camera review. Id., ¶¶42-43. I dissent from this specific
remedy proposed by the two justices. In essence, then, I vote
to affirm the decision of the court of appeals with the caveat
explained in ¶30 & n.6, infra, of this dissent.
2
No. 2011AP2680-CR.dtp
statute to release confidential information in
appropriate circumstances.
(3) The Supreme Court relied exclusively on Brady v.
Maryland, 373 U.S. 83 (1963), the case that
articulated a prosecution disclosure obligation, and
cases that clarify Brady, to support its decision.
The first sentence of the Court's due process analysis
reads: "It is well settled that the government has the
obligation to turn over evidence in its possession
that is both favorable to the accused and material to
guilt or punishment." Ritchie, 480 U.S. at 57
(emphasis added).
(4) The CYS was a government agency, acting on the
Commonwealth's behalf, and its records were
constructively in the possession of the prosecutor.
¶155 The lead opinion contrasts these factors with the
facts in Shiffra:
(1) The defendant sought the complainant's psychiatric
records from private health care providers. The State
did not engage any of those providers for the
complainant.
(2) The prosecutor did not possess any private records and
was not required to provide them to the defendant
under Brady or Wis. Stat. § 971.23. In fact, the
Shiffra court did not cite Brady in its opinion.
(3) The complainant's refusal to release her records was
grounded on a privilege statute, Wis. Stat.
3
No. 2011AP2680-CR.dtp
§ 905.04(2), which included no provision for a court
order.
¶156 The differences between the facts in Ritchie and the
facts in Shiffra are admittedly striking. The question is
whether they are constitutionally determinative. I do not
believe they are.
A
¶157 It is important to understand the dynamics in Ritchie.
The Supreme Court of Pennsylvania had relied on the Sixth
Amendment's Confrontation Clause for its decision to give the
defendant access to the entire CYS file related to the
complainant. The Supreme Court of Pennsylvania did not rely on
Brady at all.3 It said:
The purpose of [the Confrontation Clause] is to
provide an accused with an effective means of
3
A dissenting member of the court provided additional
factual insights about the case:
We do not deal with exculpatory material which
the defendant has requested and which is in the
possession of the Commonwealth. Although the Act
authorizes disclosure of child protective service
agency files to law enforcement officials
investigating cases of child abuse, 11 P.S. § 2215(9)
and (10), there is no indication that any law
enforcement officials ever had access to the CWS files
in question. Moreover, it is clear from the record
that the prosecution did not have any information from
the CWS records in its possession nor did the
Commonwealth use CWS records in any way to prosecute
appellee.
Commonwealth v. Ritchie, 502 A.2d 148, 157-58 (Pa. 1985)
(Larsen, J., dissenting), aff'd in part, rev'd in part, 480 U.S.
39 (1987).
4
No. 2011AP2680-CR.dtp
challenging the evidence against him by testing the
recollection and probing the conscience of an adverse
witness. . . .
. . . .
. . . "The search for truth" and the quest for
"every man's evidence" so plainly the basis of the
Sixth Amendment . . . are as applicable to any
material as to prior statements. When materials
gathered become an arrow of inculpation, the person
inculpated has a fundamental constitutional right to
examine the provenance of the arrow and he who aims
it. Otherwise, the Sixth Amendment can be diluted to
mean that one may face his accusers or the substance
of the accusation, except when the accuser is shielded
by legislative enactment.
Commonwealth v. Ritchie, 502 A.2d 148, 152-53 (Pa. 1985), aff'd
in part, rev'd in part, 480 U.S. 39 (1987).
¶158 Four members of the Ritchie Court——Justice Powell
joined by Chief Justice Rehnquist, Justice White, and Justice
O'Connor——rejected reliance on the Confrontation Clause of the
Sixth Amendment. A majority of the Court instead recast the
facts and relied on Brady and a due process analysis. Justice
Blackmun, who was part of the majority, and Justices Brennan and
Marshall, in dissent, would have recognized a Sixth Amendment
Confrontation Clause right to the records sought. Justices
Stevens and Scalia dissented in Ritchie solely on the ground
that the Court lacked jurisdiction to hear the case. They did
not weigh in on the central dispute.
¶159 In sum, the Supreme Court majority in Ritchie
emphasized the "investigative" function of a government agency
to bring the case within Brady principles and avoid a much
broader holding by the Court. The Court did not absolutely slam
the door against a Compulsory Process Clause claim or even a due
5
No. 2011AP2680-CR.dtp
process claim in a case with other facts. This puts the Ritchie
decision in a different light.
B
¶160 The lead opinion draws a sharp distinction between
privilege and confidentiality, emphasizing that Wis. Stat.
§ 905.04 is a privilege statute with no provisions authorizing a
court to order release of records, in contrast to the
Pennsylvania statute governing the CYS agency, which did.
¶161 There is no dispute that the Ritchie Court pointed to
the fact that 11 Pa. Stat. Ann. § 2215(a)(5) (Purdon Supp. 1986)
provided for release of confidential records pursuant to a court
order. 480 U.S. at 43-44. However, the Court also made
reference to privilege:
CYS refused to comply with the subpoena, claiming that
the records were privileged under Pennsylvania
law. . . .
. . . .
. . . The Commonwealth . . . argues that no
materiality inquiry is required, because a statute
renders the contents of the file privileged.
Requiring disclosure here, it is argued, would
override the Commonwealth's compelling interest in
confidentiality on the mere speculation that the file
"might" have been useful to the defense.
Although we recognize that the public interest in
protecting this type of sensitive information is
strong, we do not agree that this interest necessarily
prevents disclosure in all circumstances.
Id. at 43, 57 (emphasis added). The Court added a footnote: "We
express no opinion on whether the result in this case would have
been different if the statute had protected the CYS files from
6
No. 2011AP2680-CR.dtp
disclosure to anyone, including law-enforcement and judicial
personnel." Id. at 57 n.14.
¶162 The Ritchie Court would have been in a tougher
situation if Ritchie had sought information from a sexual
assault counselor, see id. at 57 (characterizing 42 Pa. Cons.
Stat. § 5945.1(b) (1982) as an "unqualified statutory privilege
for communications between sexual assault counselors and
victims"), or from a licensed psychologist, see 42 Pa. Cons.
Stat. § 5944 (1982) ("No person who has been licensed . . . to
practice psychology shall be, without the written consent of his
client, examined in any civil or criminal matter as to any
information acquired in the course of his professional services
in behalf of such client."). I suspect the result would have
been the same.4
¶163 What is important to the present case is that Wis.
Stat. § 905.04——the "Physician-patient, registered nurse-
patient, chiropractor-patient, psychologist-patient, social
worker-patient, marriage and family therapist-patient,
podiatrist-patient and professional counselor-patient privilege"
statute——has 10 statutory exceptions, including the "Abused or
neglected child" exception, and that the statute must be read
and construed in pari materia with Wis. Stat. § 48.981 and Wis.
4
As Justice Powell explained in his opinion for the Court
in Schweiker v. McClure, 456 U.S. 188 (1982): "[D]ue Process is
flexible and calls for such procedural protections as the
particular situation demands." 456 U.S. at 200 (alteration in
original) (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)).
7
No. 2011AP2680-CR.dtp
Stat. § 146.82(2) inasmuch as some fact situations will be
covered by more than one statute. Lynch already has some of the
Complainant's mental health records as a result of the State's
prosecution of the Complainant's father. Thus, the privilege at
issue in this case is not inviolate.
C
¶164 Implicit in the lead opinion's conclusion that we
should overrule Shiffra/Green is complete confidence in the
defendant's right to vigorously cross-examine a
victim/complainant at trial.
¶165 The Court in Ritchie was not impressed with this
remedy. As the Court explained, Ritchie's daughter was the main
witness against him at trial: "In an attempt to rebut her
testimony, defense counsel cross-examined the girl at length,
questioning her on all aspects of the alleged attacks and her
reasons for not reporting the incidents sooner. Except for
routine evidentiary rulings, the trial judge placed no
limitation on the scope of cross-examination." Ritchie, 480
U.S. at 44-45.
¶166 The fact that Ritchie was afforded ample opportunity
to cross-examine his daughter did not stop the Court from ruling
in Ritchie's favor. In fact, no Justice voted to block
Ritchie's access to his daughter's records.
¶167 In short, the lead opinion's comparison of Ritchie and
Shiffra does not persuade me that Shiffra was so off track that
it must be overruled. As Justice Shirley S. Abrahamson, Justice
Ann Walsh Bradley, and Justice Annette Kingsland Ziegler
8
No. 2011AP2680-CR.dtp
persuasively point out in their separate writings, this court
has embraced Shiffra and Green, and courts in many other states
have extended Ritchie to cover records held by private health
care providers.
II
¶168 I also disagree with the lead opinion's conclusion
that "Shiffra/Green cannot be grounded in any other legal basis,
specifically any other constitutional provision." Lead op., ¶8.
If I didn't know better, I might think that the lead opinion was
tying to reverse the court's declining caseload with a single
provocative sentence.
¶169 There are additional bases to justify breaching a
privilege or other evidentiary limitation in exceptional cases.
Three examples immediately come to mind.
CONFIDENTIAL INFORMANT PRIVILEGE
¶170 In Roviaro v. United States, 353 U.S. 53 (1957), the
Supreme Court discussed the government's privilege to withhold
an informer's identity. The Court explained that the privilege
"recognizes the obligation of citizens to communicate their
knowledge of the commission of crimes to law enforcement
officials and, by preserving their anonymity, encourages them to
perform that obligation." Roviaro, 353 U.S. at 59. However, a
"limitation on the applicability of the privilege arises from
the fundamental requirements of fairness":
Where the disclosure of an informer's identity, or of
the contents of his communication, is relevant and
helpful to the defense of an accused, or is essential
to a fair determination of a cause, the privilege must
give way. In these situations the trial court may
9
No. 2011AP2680-CR.dtp
require disclosure and, if the Government withholds
the information, dismiss the action.
Id. at 60-61 (footnote omitted).
¶171 In McCray v. Illinois, 386 U.S. 300 (1967), the Court
identified the basis for the Roviaro ruling: namely, "the
exercise of [the Court's] power to formulate evidentiary rules
for federal criminal cases." 386 U.S. at 312. As this court
explained in State v. Nellessen, 2014 WI 84, 360 Wis. 2d 493,
849 N.W.2d 654, Wis. Stat. § 905.10(1) "codified this privilege
for informers, which was first recognized in the seminal"
Roviaro decision. 360 Wis. 2d 493, ¶15. Wisconsin's
codification did not come until more than 15 years after the
Roviaro decision.
THE RAPE SHIELD LAW
¶172 Similar to other exceptions to various privileges, in
State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), this
court held the rape shield statute, Wis. Stat. § 972.11(2)
(1985-86),5 unconstitutional as applied, to the extent it
5
The statute provided as follows:
(2)(a) In this subsection, "sexual conduct" means
any conduct or behavior relating to sexual activities
of the complaining witness, including but not limited
to prior experience of sexual intercourse or sexual
contact, use of contraceptives, living arrangement and
life-style.
(b) If the defendant is accused of a crime under
s. 940.225, any evidence concerning the complaining
witness's prior sexual conduct or opinions of the
witness's prior sexual conduct and reputation as to
prior sexual conduct shall not be admitted into
evidence during the course of the hearing or trial,
nor shall any reference to such conduct be made in the
(continued)
10
No. 2011AP2680-CR.dtp
infringed on a defendant's constitutional rights. The
defendant, Pulizzano, sought to present evidence that her
alleged victim "had been the victim of a prior sexual assault
which involved acts similar to those alleged[ly]" performed by
Pulizzano. Pulizzano, 155 Wis. 2d at 642-43. To assess
Pulizzano's claim, the court described a "constitutional right
to present evidence . . . grounded in the confrontation and
compulsory process clauses of Article I, Section 7 of the
Wisconsin Constitution and the Sixth Amendment of the United
States Constitution." Id. at 645 (first citing Washington v.
Texas, 388 U.S. 14, 17-19 (1967); then citing Pointer v. Texas,
380 U.S. 400, 403-06 (1965)).
¶173 Based on those constitutional protections, this court
concluded that under certain circumstances "evidence of a
complainant's prior sexual conduct may be so relevant and
probative that the defendant's right to present it is
presence of the jury, except the following, subject to
s. 971.31(11):
1. Evidence of the complaining witness's past
conduct with the defendant.
2. Evidence of specific instances of sexual
conduct showing the source or origin of semen,
pregnancy or disease, for use in determining the
degree of sexual assault or the extent of injury
suffered.
3. Evidence of prior untruthful allegations of
sexual assault made by the complaining witness.
Wis. Stat. § 972.11(2) (1985-86). The statute remains
substantially similar in the current codification.
11
No. 2011AP2680-CR.dtp
constitutionally protected. Section 972.11, Stats., as applied,
may in a given case impermissibly infringe upon a defendant's
rights to confrontation and compulsory process." Id. at 647-48
(first citing Chambers v. Mississippi, 410 U.S. 284, 294-303
(1973); then citing Davis v. Alaska, 415 U.S. 308, 315-18
(1974)). If a defendant "establish[es] a constitutional right
to present otherwise excluded evidence," then "the circuit court
must then determine whether the State's interests in excluding
the evidence are so compelling that they nonetheless overcome
the defendant's right to present it." Id. at 656-57. During
the balancing, "the state's interests are to be closely examined
and weighed against the force of the defendant's right to
present the evidence." Id. at 657.
THERAPIST-PATIENT PRIVILEGE
¶174 In Johnson v. Rogers Memorial Hospital, Inc., 2005 WI
114, 283 Wis. 2d 384, 700 N.W.2d 27, the court established an
exception to the therapist-patient privilege in a third-party
negligence claim against a therapist whose treatment allegedly
resulted in implanting false memories of child abuse against a
woman's father. The court described the exception as "a public
policy exception" based on the premise that "no utility can be
derived from protecting careless or inappropriate therapists and
their practices." Johnson, 283 Wis. 2d 384, ¶¶63, 65.
¶175 A brief review of existing exceptions to the
confidential informant privilege, rape shield law, and
therapist-patient privilege demonstrates that the Shiffra/Green
framework is not the only context in which courts endeavor to
12
No. 2011AP2680-CR.dtp
strike a balance between defendants' constitutional rights and
the policies underlying various evidentiary limitations.
Professor Edward J. Imwinkelried has explained in general terms
the nature of the balance that courts strike:
In criminal cases, the [Supreme] Court has
rendered exclusionary rules of evidence such as
privileges qualified or conditional by developing a
balancing test to determine whether the accused's
constitutional right to present evidence surmounts the
exclusionary rule. . . . [T]he factors in and the
nature of the balancing test employed in applying the
constitutional right are essentially the same as those
that a judge utilizes to determine whether a
litigant's need for privileged information overrides a
qualified privilege. The existence of this
constitutional right transforms even purportedly
absolute privileges into qualified or conditional
ones.
Edward J. Imwinkelried, The New Wigmore: A Treatise on Evidence
§ 11.3, at 1261 (2002). "[T]he vast majority of contemporary
lower courts assume that the accused's constitutional right
applies to evidentiary privileges and that if the excluded
evidence is reliable and material enough, the right can override
a privilege." Id. § 11.4.1, at 1295.
¶176 Overruling Shiffra and Green would needlessly cast
doubt on Pulizzano, Johnson, and other precedent in which
statutory schemes that reasonably promote privacy nevertheless
give way to weightier constitutional concerns. Furthermore, if
Shiffra and Green were overruled, creative counsel would soon
find other sources for the authority to order release of
privileged psychological and medical records, where necessary,
and these sources might well prove far more problematic than
13
No. 2011AP2680-CR.dtp
Shiffra, which has provided a constructive approach to balancing
interests.
III
¶177 In my view, the lead opinion is being driven by
certain foundational concerns related to Shiffra/Green.
¶178 First, Shiffra/Green appears to open the door to
pretrial discovery beyond the sensible limitations in Wis. Stat.
§ 971.23.
¶179 Second, Shiffra/Green breaches an important statutory
privilege and other such breaches are likely to follow.
¶180 Third, Shiffra/Green embodies two extremes. The
complainant may prevent the State from prosecuting a criminal
case by insisting on withholding records that the court
concludes are necessary for the defendant's defense. However,
the complainant must surrender her privacy in confidential
communications if she releases her private psychological records
as a condition for prosecuting her assailant.
¶181 These are very legitimate concerns. However, rather
than overruling Shiffra and Green, the court would be better
served by focusing on and trying to address each of these
concerns by further refining and improving the existing
14
No. 2011AP2680-CR.dtp
Shiffra/Green framework. This will necessarily include the
consideration of additional remedies.6
¶182 For the foregoing reasons, I respectfully dissent.
6
Already, the Shiffra/Green framework contemplates the
circuit court placing limitations on the release of privileged
mental health care records, as we indicated in Green when noting
that "[w]e have confidence in . . . circuit courts [conducting
an in camera review] to . . . make a proper determination as to
whether disclosure of the information is necessary based on the
competing interests involved in such cases." State v. Green,
2002 WI 68, ¶35, 253 Wis. 2d 356, 646 N.W.2d 298. Even "[w]hen
consent is given, the judge scrutinizes the records to determine
whether disclosure is warranted." 7 Daniel D. Blinka, Wisconsin
Practice Series § 511.2, at 389-90 (3d ed. 2008).
In my view, the court should explore reasonable remedies
between the extremes stated in ¶29, supra, so that barring
testimony by the nonconsenting witness is not the sole remedy in
all cases. See Blinka § 511.2, at 392. For example, Professor
Blinka has suggested that
[a]nother remedy may be to permit the witness to
testify but allow the defense to cross-examine about
his or her refusal to divulge records requested by the
court. The defense should also be permitted to argue
that the witness's nondisclosure creates a reasonable
doubt based on credibility concerns.
Id.
15
No. 2011AP2680-CR.akz
¶183 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). This
case presents the court with a thorny issue: how must a circuit
court proceed when a criminal defendant contends there exists
exculpatory evidence in the hands of a private party, the
evidence consists of statutorily-privileged medical records, and
the alleged victim and subject of the medical records refuses to
waive her privilege as to the evidence at issue?
¶184 More concretely: defendant Patrick Lynch ("Lynch")
faces charges that he sexually assaulted the complainant in the
1990s. State v. Lynch, 2015 WI App 2, ¶2, 359 Wis. 2d 482, 859
N.W.2d 125. Lynch filed a motion requesting that the circuit
court1 review in camera the complainant's medical treatment
records dating back to the time of the alleged abuse. Id., ¶5.
According to the court of appeals below, he "submitted a
detailed offer of proof in support of his
motion . . . offer[ing] factual assertions and documents to
support his theory that [the complainant's] treatment records
contain probative, noncumulative evidence bearing on the
reliability of [the complainant's] allegations against Lynch."
Id., ¶11. Upon review, the circuit court concluded that there
was "a reasonable likelihood that [the complainant's] treatment
records contained probative, noncumulative evidence helpful to
Lynch's defense." Id., ¶5. Specifically, the court determined
1
The Honorable Andrew P. Bissonnette presided.
1
No. 2011AP2680-CR.akz
that there was a reasonable likelihood that [the
complainant's] records contain information highly
damaging to [the complainant's] credibility because
there is a reasonable likelihood that the records
[would] reveal
(1) that [the complainant] exhibits
ongoing symptoms associated with [Post-
Traumatic Stress Disorder] that affect her
ability to recall and describe pertinent
events, and
(2) that [the complainant] failed to
report Lynch to treatment providers, at
least as a child.
Id., ¶13. The complainant refused, as was her statutory
prerogative, to provide the circuit court with access to her
privileged treatment records. Id., ¶6. At this point, it would
seem to an onlooker, the parties were at an impasse.
¶185 Such a state of affairs presents courts with the
complicated task of ensuring the administration of justice
considering all of the interests involved. Lynch, for example——
presumed innocent until proven guilty by the State, State v.
Johnson, 11 Wis. 2d 130, 144, 104 N.W.2d 379 (Dieterich, J.,
dissenting)——faces the possibility of being convicted as a sex
offender who may, among other things, serve decades in prison,
and he has a constitutional right to due process of law. See
U.S. Const. amend. XIV. Conversely, the State has, among other
things, an interest in pursuing its prosecution and protecting
the public from criminals, yet must comply with the statutory
and other rights and privileges established for the benefit of
victims of crime. The complainant, however, could have, among
other things, an interest in maintaining the privacy of sought-
2
No. 2011AP2680-CR.akz
after medical records. How to manage the conflicting rights and
interests of all concerned?
¶186 Fortunately, this is not the first time the Wisconsin
judiciary has grappled with this problem. For over two decades,
its solution could be found in State v. Shiffra, 175
Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), modified, State v.
Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298. As will be
explained in detail below, Shiffra has set forth a framework
which considers the interests of all involved, carefully
balancing the various demands in an attempt to achieve
substantial justice in a manner that upholds both the federal
constitution and the laws of our state. Put differently, the
Shiffra solution "attempt[s] to strike a balance between the
witness's right to privacy, which is embodied in the health care
provider privileges, and the truth-seeking function of our
courts, which is rooted in the Due Process Clause of the
Fourteenth Amendment." State v. Behnke, 203 Wis. 2d 43, 56, 553
N.W.2d 265 (Ct. App. 1996) (citation omitted). Shiffra is
indeed longstanding precedent.
¶187 About ten years after Shiffra, in Green, we examined
and refined the Shiffra framework. In Green we described the
nature of the preliminary showing that a criminal defendant must
make in order to obtain in camera review of a privilege-holder's
privileged records:
[A] defendant [must] set forth, in good faith, a
specific factual basis demonstrating a reasonable
likelihood that the records contain relevant
information necessary to a determination of guilt or
innocence and . . . not merely cumulative to other
3
No. 2011AP2680-CR.akz
evidence available to the defendant.
. . . [I]nformation will be "necessary to a
determination of guilt or innocence" if it "tends to
create a reasonable doubt that might not otherwise
exist."
Green, 253 Wis. 2d 356, ¶34 (citation omitted). To date,
Shiffra and Green remain the settled law in Wisconsin on the
approach taken by courts and litigants when criminal defendants
wish to obtain access to privately-held, privileged medical
records.
¶188 The circuit court below dutifully worked through the
Shiffra-Green framework and applied the traditional sanction
which included two results: (1) the court did not violate the
complainant's privilege by reviewing her privileged records; and
(2) the court issued an order excluding the complainant's
testimony at trial. Lynch, 359 Wis. 2d 482, ¶¶6, 45-46. The
court of appeals below confirmed that the circuit court had
correctly applied applicable precedent. See id., ¶1. The State
now appeals, directing the brunt of its arguments, not against
the reasoning of the circuit court or the court of appeals, but
against the soundness of Shiffra and Green.
¶189 Some background is appropriate. Over the years, the
State has made it clear that it disagrees with the Shiffra-Green
line of cases. Time after time, the State has attempted to
convince this court to overturn Shiffra; it has also voiced its
displeasure with that case in the court of appeals. See, e.g.,
State v. Speese, 199 Wis. 2d 597, 610 n.12, 545 N.W.2d 510
(1996) ("The State . . . urges the court to overturn Shiffra.");
Behnke, 203 Wis. 2d at 55 (discussing "the State's complaint in
4
No. 2011AP2680-CR.akz
its brief that it does not like Shiffra."); Green, 253
Wis. 2d 356, ¶21 n.4 ("The State contends that the holding in
[Shiffra] was in error . . . ."); State v. Johnson, 2013 WI 59,
348 Wis. 2d 450, 832 N.W.2d 609 (per curiam), reconsideration
granted, 2014 WI 16, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam)
(examining, at State's request, whether Shiffra should be
overruled).
¶190 For its part, the court of appeals has attempted to
alleviate the State's concerns by explaining that the State
"misconstrues the reasoning of . . . Shiffra." Behnke, 203
Wis. 2d at 55. And for our part, we have expressly declined to
overturn Shiffra, noting that we have recognized its validity in
past cases. Green, 253 Wis. 2d 356, ¶21 n.4 (citing State v.
Solberg, 211 Wis. 2d 372, 386-87, 564 N.W.2d 775 (1997); State
v. Rizzo, 2002 WI 20, ¶53, 250 Wis. 2d 407, 640 N.W.2d 93)).
¶191 Johnson, decided a few years ago, represents the
State's most recent attempt in its campaign against Shiffra; the
State was again unsuccessful. See Johnson, 353 Wis. 2d 119, ¶3
(per curiam) ("[W]e do not herein overturn or modify any
precedent."). Unbowed and apparently embracing the legal maxim
fiat justitia ruat caelum,2 the State again argues that Shiffra
should be overruled. The State again fails to convince this
court to adopt its proposed course of action.
¶192 The Shiffra-Green line of cases, while not perfect,
has provided a reasoned and reasonable approach to these
2
"Let justice be done, though the heavens fall."
5
No. 2011AP2680-CR.akz
difficult questions. Under principles of stare decisis, I would
not overthrow these well-established cases without "special
justification," Johnson Controls, Inc. v. Employers Ins. of
Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257
(citation omitted), and none has yet been provided.
Unfortunately, some of my colleagues do not agree; I therefore
write separately.
¶193 I conclude that this court should not abandon the
Shiffra-Green framework and would therefore affirm the decision
of the court of appeals.
I. THE SHIFFRA-GREEN FRAMEWORK
¶194 Under Wis. Stat. § 905.04(2), "A patient has a
privilege to refuse to disclose and to prevent any other person
from disclosing confidential communications made or information
obtained or disseminated for purposes of diagnosis or treatment
of the patient's physical, mental or emotional condition, among
the patient" and certain specified individuals, such as the
patient's physician or counselor. Wis. Stat. § 905.04(2).
¶195 When, as here, a defendant wishes to obtain access to
privileged, privately-held counseling records, the Shiffra-Green
framework requires that he "undertake a reasonable investigation
into the victim's background and counseling through other means
first before the records will be made available." Green, 253
Wis. 2d 356, ¶33. Thus "[a] motion for seeking discovery for
such privileged documents should be the last step in a
defendant's pretrial discovery." Id., ¶35. When requesting
access to privileged records, the defendant must make "a fact-
6
No. 2011AP2680-CR.akz
specific evidentiary showing, describing as precisely as
possible the information sought from the records and how it is
relevant to and supports his or her particular defense." Id.,
¶33. More specifically, the defendant must "set forth, in good
faith, a specific factual basis demonstrating a reasonable
likelihood that the records contain relevant information
necessary to a determination of guilt or innocence and . . . not
merely cumulative to other evidence available to the defendant."
Id., ¶34. Evidence "necessary to a determination of guilt or
innocence" is evidence that "tends to create a reasonable doubt
that might not otherwise exist." Id. (citation omitted). This
is not by any means intended to be a trivial burden; "mere
speculation or conjecture" is insufficient. See id., ¶33.
Additionally, "[a] good faith request will often require support
through motion and affidavit from the defendant." Id., ¶35.
¶196 If the circuit court determines that the defendant has
met his burden, it reviews the records at issue in camera,
unless the privilege-holder——in cases such as this one, also the
alleged victim——refuses to authorize review. See Shiffra, 175
Wis. 2d at 612; Lynch, 359 Wis. 2d 482, ¶¶5-6. "If the victim
does not consent, there is no in camera review and the victim is
barred from testifying." Johnson v. Rogers Mem'l Hosp., Inc.,
2005 WI 114, ¶73, 283 Wis. 2d 384, 700 N.W.2d 27 (plurality
opinion) (citing Shiffra, 175 Wis. 2d at 612). If the alleged
victim does consent, however, the court reviews the records in
camera to ascertain whether they contain "any relevant
information that is 'material' to the defense of the accused."
7
No. 2011AP2680-CR.akz
Solberg, 211 Wis. 2d at 386 (citation omitted). The standard
applied by the court during its in camera review is even more
demanding than the initial burden that must be met by the
defendant to obtain that review. See Green, 253 Wis. 2d 356,
¶31.
¶197 If the records at issue do not contain information
meeting the standard just described, no information is released
to the defendant. Solberg, 211 Wis. 2d at 387. If the records
do contain relevant information material to the defense of the
accused, the information is disclosed to the defendant, unless
the alleged victim refuses to authorize disclosure. Id. at 386-
87.3
¶198 The Shiffra-Green framework, which "giv[es] the
defendant an opportunity to have the circuit court conduct an
[in camera] review of the privileged records, while still
allowing the patient to preclude that review, addresses both the
interests of the defendant and the patient." Id. at 387
(citation omitted). "Under the due process clause, criminal
defendants must be given a meaningful opportunity to present a
complete defense." Shiffra, 175 Wis. 2d at 605 (citation
omitted). On the other hand, "[t]he public policy underpinning
3
Of course, if any information is released, the court still
retains "reasonable control over the mode and order of
interrogating witnesses and presenting evidence" at trial. Wis.
Stat. § 906.11. The court has the duty to exercise this control
in order to "[m]ake the interrogation and presentation effective
for the ascertainment of the truth[;] [a]void needless
consumption of time[; and] [p]rotect witnesses from harassment
or undue embarrassment." Id.
8
No. 2011AP2680-CR.akz
the [Wis. Stat. § 905.04] privilege is to encourage patients to
freely and candidly discuss medical concerns with their
physicians by ensuring that those concerns will not
unnecessarily be disclosed to a third person." Solberg, 211
Wis. 2d at 387 (citation omitted). Thus, there is a quadruple-
layer of protection in place for privilege-holders: a privilege-
holder's consent to disclosure is required at two stages (prior
to in camera review and after in camera review), the defendant
must make the challenging Green showing before he is granted in
camera review of privileged records, and the circuit court
applies an even stricter standard to its in camera review of
those records before determining whether any evidence should be
disclosed to the defendant.
¶199 The existing procedure "strikes an appropriate balance
between the defendant's due process right to be given a
meaningful opportunity to present a complete defense and the
policy interests underlying the Wis. Stat. § [905.04(2)]
privilege." Id. First, fishing expeditions by the defense are
prohibited. Green, 253 Wis. 2d 356, ¶33. Second, if the
privilege holder does not wish to disclose the records, they
will not be disclosed. See Shiffra, 175 Wis. 2d at 612. Third,
should a circuit court conclude that a defendant makes a Green
preliminary showing for an in camera review, and should the
privilege-holder refuse to allow the court to conduct that
review, a defendant's right to a fair trial is safeguarded by
barring the privilege-holder's testimony at trial. Id. After
all, the defendant has by that time "demonstrat[ed] a reasonable
9
No. 2011AP2680-CR.akz
likelihood that the [privilege-holder's] records contain
relevant information necessary to a determination of guilt or
innocence and . . . not merely cumulative to other evidence
available to the defendant." Green, 253 Wis. 2d 356, ¶34
(emphases added). "Under the circumstances," preclusion of the
privilege-holder's testimony is warranted as "the only method of
protecting [the defendant's] right to a fair trial." Shiffra,
175 Wis. 2d at 612.
¶200 Regrettably, there are occasions when defendants are
wrongfully accused of committing a sexual assault. In those
instances, the alleged victim would be the most likely to refuse
access to those records, particularly if exculpatory information
exists within those records. Unfortunately, the lead opinion
falls short of contemplating this scenario when it bars access
to an alleged victim's privileged, privately-held records no
matter the circumstances. Simply stated, the procedure outlined
by the lead opinion forecloses any opportunity to rebut the
allegations through the use of an alleged victim's records, even
when the defendant meets the high standard required by Green.4
4
In cases such as this one where the defendant has met the
significant hurdles established in the Green standard and the
privilege-holder refuses to consent to in camera review, the
lead opinion has nonetheless concluded that otherwise
accessible, potentially exculpatory evidence has
constitutionally been placed outside of the reach of the
defendant. The lead opinion dismisses our concern over the
potential violation of the defendant's constitutional rights,
tacitly characterizing it as an emotional appeal. If the
constitutional right to present a defense has emotional appeal,
it is because I feel strongly that our constitutional rights
ought to be protected. The lead opinion's assurances that
somehow the criminal justice system otherwise prevents wrongful
(continued)
10
No. 2011AP2680-CR.akz
convictions, in the absence of the Shiffra-Green framework, ring
hollow.
The lead opinion concludes that meaningful constitutional
protections are afforded to a defendant, because a defendant has
certain general safeguards, such as a presumption of innocence
and the right to an adversarial process. The lead opinion
concludes that these protections alone avert erroneous
convictions, but these protections alone do not directly address
the need for a defendant to access privileged, privately-held
records in order, for example, to present a meaningful defense
or adequately cross-examine——fundamental to the adversarial
process. True, the presumption of innocence is a safeguard, in
the same way that providing defendants with a trial in the first
place is a safeguard: necessary, important, but ultimately not
germane to the specific concern in these types of cases: a
privilege-holder's refusal to consent to in camera review of
privileged, privately-held records reasonably likely to contain
relevant information necessary to a determination of the
defendant's guilt or innocence and not merely cumulative to
other evidence available to the defendant. State v. Green, 2002
WI 68, ¶19, 253 Wis. 2d 356, 646 N.W.2d 298
The lead opinion urges trust in our adversary legal system,
but our "adversary legal system . . . depends upon the
availability of relevant evidence," Nixon v. Administrator of
General Services, 433 U.S. 425, 477 (1977), to say nothing of
the availability of "information necessary to a determination of
guilt or innocence and . . . not merely cumulative to other
evidence available to the defendant." Green, 253 Wis. 2d 356,
¶34. I acknowledge the grave importance of ensuring the privacy
of the records at issue in this case. At the same time, when
evidence potentially so relevant to the question of a
defendant's guilt is placed out of the defendant's reach, there
is legitimate cause for concern. We do expect juries to reach
valid results, but they are unable to do so when they are only
presented with the evidence favorable to one side of a
prosecution. This is what causes individuals to lose, not gain,
faith in the criminal justice system.
Additionally, the lead opinion explains that because in
cases such as the current one the prosecution does not have
access to a complainant's privileged mental health care records
either, defendants are not placed in a disadvantageous position
vis-à-vis the State. But Wisconsin case law has already
addressed this argument:
(continued)
11
No. 2011AP2680-CR.akz
Is it so clear that this procedure is preferable to the one that
has been in place for over two decades? I think not.
¶201 The Shiffra-Green framework provides a workable
solution to a difficult problem. Perhaps suggesting its
intrinsic equity, the framework forces every party involved——the
defendant, the privilege-holder, the State——to shoulder a burden
of some kind. The defendant must meet the required evidentiary
In those situations when the State does not have
access to the records because the witness has asserted
a health care provider privilege, . . . the State
believes that the requirement for an in camera review
set out in Ritchie should not apply. . . . [The
State] sees no potential unfairness in such situations
because neither the State nor the defendant can use
the records. The playing field is kept completely
level.
The State, however, misconstrues the reasoning of
Ritchie and Shiffra. These decisions are not about
keeping a level playing field between the State and
the defendant. Rather, these decisions attempt to
strike a balance between the witness's right to
privacy, which is embodied in the health care provider
privileges, and the truth-seeking function of our
courts, which is rooted in the Due Process Clause of
the Fourteenth Amendment.
State v. Behnke, 203 Wis. 2d 43, 55-56, 553 N.W.2d 265 (Ct. App.
1996) (citation omitted).
Finally, the lead opinion refers to the State's obligation
under Brady v. Maryland, 373 U.S. 83 (1963), and to the
possibility that future legislative or judicial developments
will provide a new justification for use of the Shiffra-Green
framework. Again, these considerations do not address the
pressing concern in this case: a privilege-holder's refusal to
consent to in camera review of currently-privileged, privately-
held records reasonably likely to contain relevant information
necessary to a determination of the defendant's guilt or
innocence and not merely cumulative to other evidence available
to the defendant. Green, 253 Wis. 2d 356, ¶19.
12
No. 2011AP2680-CR.akz
showings, is never allowed his own review of the records at
issue prior to final disclosure, and may nevertheless lose
access to the records if the privilege-holder does not consent
to disclosure. The privilege-holder must choose between limited
disclosure of privileged evidence which is reasonably likely to
contain relevant, non-cumulative information necessary to a
determination of the defendant's guilt or innocence and
preclusion of her testimony at trial. Finally, the State faces
the possibility that its prosecution will be "hampered by a
witness who strives to maintain privacy." Behnke, 203 Wis. 2d
at 55.
¶202 The State has lodged understandable complaints against
the effect the Shiffra-Green framework has on the prosecution of
its cases.
We . . . acknowledge that the "costs" of the
health care provider privileges are principally
shifted to the State. In a few circumstances, the
State may have to completely forgo a case when one of
its witnesses refuses to turn over the information.
Nonetheless, the Due Process Clause guarantees the
defendant a right to a trial based on truth seeking
which can only be accomplished by allowing him or her
to present a complete defense. The Due Process Clause
thus prevents the State from shifting the costs
associated with the health care provider privileges to
criminal defendants. . . .
The State also complains about the practical
effects of the Shiffra decision on its ability to
prosecute a case. It believes that forcing the State
to pressure its witness into releasing the information
or forgoing this witness's testimony is not fair. The
State asserts that it should not be forced to make its
witness reveal private information. And a witness,
most likely the accuser, should not be forced to
disclose private and personal information to have the
defendant brought to justice.
13
No. 2011AP2680-CR.akz
These complaints, however, were addressed in
Shiffra, and the remedy set out in that case is still
valid. Before the defendant is allowed access to
these records and the witness's privacy is sacrificed,
and before the State is faced with the decision of
whether it can forgo the witness and still make its
case, the records must pass through a private and
confidential review in the trial court's chambers. We
have complete confidence in this state's trial judges
to accurately and fairly balance the witness's right
to privacy and the defendant's right to a trial where
every piece of evidence material to determining the
truth will be considered. The State overestimates the
burden that Shiffra places on it and its witnesses.
Behnke, 203 Wis. 2d at 56-57 (citations omitted).
¶203 The Behnke court's discussion provides a window into
the State's view of the matter. The State again asks this court
to abandon the Shiffra-Green framework by overturning Shiffra or
by modifying Shiffra's holding to allow for remedies other than
preclusion of the privilege-holder's testimony. Certain of my
colleagues would grant the State's request. I would not and
will now discuss why the court should not now abandon the
Shiffra-Green framework.
II. THIS COURT SHOULD NOT ABANDON THE SHIFFRA-GREEN FRAMEWORK.
A. This Court Should Not Overrule Shiffra.
¶204 The State and the lead opinion would upend over two
decades of precedent by overruling Shiffra, despite the fact
that this court has already explicitly refused to do so. Green,
253 Wis. 2d 356, ¶21 n.4.5 What has changed since Green?:
5
To put the time period during which Wisconsin courts have
relied on Shiffra in perspective, I note that Shiffra was
decided the same year as Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).
14
No. 2011AP2680-CR.akz
Nothing that has any bearing on the legal questions in this
case. What should now cause us to uproot decades of precedent?
Such unpredictability on the part of this court is inimical to
the rule of law. Johnson Controls, 264 Wis. 2d 60, ¶94
("[R]espect for prior decisions is fundamental to the rule of
law."). When our law "is open to revision in every case,
'deciding cases becomes a mere exercise of judicial will, with
arbitrary and unpredictable results.'" Id. (citation omitted).
Although often repeated, it is appropriate to again set out the
important rationales for stare decisis:
[1] the desirability that the law furnish a clear
guide for conduct of individuals, to enable them to
plan their affairs with assurance against untoward
surprise; [2] the importance of furthering fair and
expeditious adjudication by eliminating the need to
relitigate every relevant proposition in every case;
and [3] the necessity of maintaining public faith in
the judiciary as a source of impersonal and reasoned
judgments.
Id., ¶95 (citation omitted). Stare decisis "promotes
evenhanded, predictable, and consistent development of legal
principles . . . and contributes to the actual and perceived
integrity of the judicial process." Id. (citation omitted).
Twice now in the past few years this court has wrestled with the
problem at issue in this case and created confusion in the lower
courts. Johnson, 348 Wis. 2d 450 (per curiam), reconsideration
granted, 353 Wis. 2d 119 (per curiam). All the more reason to
follow precedent today.
¶205 "[S]pecial justification is required to overturn prior
decisions," and "[t]he reasons for rejecting any established
rule of law must always be weighed against" the rationales
15
No. 2011AP2680-CR.akz
underlying stare decisis. Johnson Controls, 264 Wis. 2d 60,
¶¶95-96. When considering overturning prior case law, this
court may examine a series of concerns: (1) whether there have
been "changes or developments in the law [which] have undermined
the rationale behind a decision"; (2) whether there is "a need
to make a decision correspond to newly ascertained facts"; (3)
whether there has been "a showing that the precedent has become
detrimental to coherence and consistency in the law"; (4)
"whether the prior decision is unsound in principle"; (5)
"whether [the prior decision] is unworkable in practice"; (6)
"whether reliance interests are implicated"; (7) "whether the
prior case was correctly decided"; and (8) "whether it has
produced a settled body of law." Id., ¶¶98-99 (citations
omitted).
¶206 Most, if not all, of these considerations counsel
against overturning Shiffra and Green. But the State and the
lead opinion share the same fundamental complaint with regard to
the Shiffra-Green framework: they believe that Shiffra
improperly interpreted and applied the case upon which it
principally relied, Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
Shiffra, 175 Wis. 2d at 603. In Ritchie the Supreme Court
relied on the Due Process Clause of the Fourteenth Amendment,
Brady v. Maryland, 373 U.S. 83 (1963), and other case law for
its conclusion that the trial court in that case was required to
review in camera confidential records in the hands of a state
protective service agency in order to determine whether the
records contained information that "probably would have changed
16
No. 2011AP2680-CR.akz
the outcome" of a criminal defendant's trial. Ritchie, 480 U.S.
at 43, 57-58.
¶207 Specifically, the lead opinion argues that Shiffra
represents an unwarranted application of Ritchie, because: (1)
Shiffra involved privileged records, whereas Ritchie involved
confidential records; (2) Wis. Stat. § 905.04(2) contains no
exception allowing for release by court order, whereas the
statute at issue in Ritchie did contain such an exception; and
(3) the records in Shiffra were held by a private entity,
whereas the records in Ritchie were held by a state protective
service agency "charged with investigating cases of suspected
mistreatment and neglect." Ritchie, 480 U.S. at 43. This last
distinction is essentially echoed by the State.
¶208 Before turning to these objections, let us assume for
a moment that the State and the lead opinion are correct that
Shiffra was wrong to premise its holding on Ritchie.
Respecting stare decisis means sticking to some
wrong decisions. The doctrine rests on the idea, as
Justice Brandeis famously wrote, that it is usually
"more important that the applicable rule of law be
settled than that it be settled right." Indeed, stare
decisis has consequence only to the extent it sustains
incorrect decisions; correct judgments have no need
for that principle to prop them up. Accordingly, an
argument that we got something wrong——even a good
argument to that effect——cannot by itself justify
scrapping settled precedent. Or otherwise said, it is
not alone sufficient that we would decide a case
differently now than we did then. To reverse course,
we require as well what we have termed a "special
justification"——over and above the belief "that the
precedent was wrongly decided."
17
No. 2011AP2680-CR.akz
Kimble v. Marvel Entm't, LLC, 576 U.S. ___, 135 S. Ct. 2401,
2409 (2015) (emphasis added) (citations omitted).6 In 2002 the
6
The lead opinion's suggestion that this statement of law
is inapplicable in a constitutional case is not correct. In the
section of Kimble v. Marvel Entertainment, LLC, 576 U.S. ___,
135 S. Ct. 2401 (2015), cited above, the Supreme Court discussed
stare decisis in general terms and in fact cited Payne v.
Tennessee, 501 U.S. 808, 827-28 (1991), a constitutional case,
in the first paragraph of that section. Kimble, 135 S. Ct. at
2409 (citation omitted). The Court also discussed stare decisis
in the context of decisions interpreting statutes. This latter
discussion is the one quoted by the lead opinion. See id.
For example, in Dickerson v. United States, the Supreme
Court considered legislation bearing on Miranda v. Arizona, 384
U.S. 436 (1966), and considered whether it should overrule that
case. Dickerson, 530 U.S. 428, 431-32 (2000). The Court
concluded: "We hold that Miranda, being a constitutional
decision of this Court, may not be in effect overruled by an Act
of Congress, and we decline to overrule Miranda ourselves." Id.
at 432. A portion of the Dickerson Court's discussion of stare
decisis is informative for purposes of this case:
Whether or not we would agree with Miranda's
reasoning and its resulting rule, were we addressing
the issue in the first instance, the principles of
stare decisis weigh heavily against overruling it now.
See, e.g., Rhode Island v. Innis, 446 U.S. 291, 304,
100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980) (Burger, C.J.,
concurring in judgment) ("The meaning of Miranda has
become reasonably clear and law enforcement practices
have adjusted to its strictures; I would neither
overrule Miranda, disparage it, nor extend it at this
late date."). While "'stare decisis is not an
inexorable command,'" particularly when we are
interpreting the Constitution, "even in constitutional
cases, the doctrine carries such persuasive force that
we have always required a departure from precedent to
be supported by some 'special justification.'"
We do not think there is such justification for
overruling Miranda.
Id. at 443 (some citations omitted) (emphasis added).
(continued)
18
No. 2011AP2680-CR.akz
Green court understood that fact. Green, 253 Wis. 2d 356, ¶21
n.4 ("[T]his court [has] recognized the validity of Shiffra in
State v. Solberg, 211 Wis. 2d 372, 386-87, 564 N.W.2d 775
(1997), and in State v. Rizzo, 2002 WI 20, ¶53, 250 Wis. 2d 407,
640 N.W.2d 93. We will not depart from this precedent.").
¶209 Thus, although the State and the lead opinion have
undeniably identified distinctions between Shiffra and Ritchie,
the relevant question is whether these distinctions warrant
upheaval of a "settled body of law."7 Johnson Controls, 264
Wis. 2d 60, ¶99; see Daniel D. Blinka, The Shiffra Procedures:
Production of a Witness's Privileged Health Care Records, 7 Wis.
Prac., Wis. Evidence § 511.2 (discussing "the Shiffra
doctrine"); see also Wisconsin District Attorneys Association,
Wisconsin Prosecutor's Domestic Abuse Reference Book, ch. 13 (2d
ed. 2012) ("Discovery of Medical Records of Victims and
Witnesses: Shiffra-Green and Related Cases").
¶210 Turning to the merits of the objections raised: Was
Shiffra "unsound in principle"? Johnson Controls, 264
Wis. 2d 60, ¶99. That is, was it wrong to extend the reasoning
Shiffra-Green has striking similarities to the development
of Miranda. Both developed out of underlying constitutional
principles rather than the words of the constitution itself.
Given the above precedent, consider the words "Shiffra-Green" in
place of "Miranda" in the above quotation to analyze whether
stare decisis applies in the case at issue.
7
For instance, the Shiffra court itself recognized that it
was using Ritchie's postconviction analysis in a pretrial
context, and thus already was not simply engaged in a
straightforward application of that case. See State v. Shiffra,
175 Wis. 2d 600, 606-09, 499 N.W.2d 719 (Ct. App. 1993).
19
No. 2011AP2680-CR.akz
in Ritchie to privately-held records? Nationwide, the jury is
still out on that question:
Since the due process obligation of the
prosecution under Brady extends only to evidence
within its control, an issue left open in Ritchie is
whether a subpoena . . . directed to a private party
or an unrelated governmental agency carries similar
constitutional protection. Many lower courts, in
dealing with records similar to those involved in
Ritchie, have ordered the same type of in camera
review as required there without regard to whether the
records were sought from a related state agency or a
private hospital.
Wayne R. LaFave et al., 6 Criminal Procedure § 24.3(f) & n.207
(4th ed. 2015) (collecting cases); Burns v. State, 968 A.2d
1012, 1024–25 & n.41 (Del. 2009) (same). Additionally, at least
one state court has allowed access to the type of information at
issue on constitutional grounds unrelated to the Due Process
Clause, which is why the lead opinion undertakes the Herculean
task of negating any other constitutional basis for Shiffra in
order to demonstrate that Shiffra is indeed "unsound in
principle." See Commonwealth v. Barroso, 122 S.W.3d 554, 561
(Ky. 2003) ("[W]e conclude that the Compulsory Process Clause
affords a criminal defendant the right to obtain and present
exculpatory evidence, including impeachment evidence, in the
possession of a third party that would otherwise be subject to
the psychotherapist-patient privilege."). One might think that
the unsettled nature of the question across the country would
counsel restraint when considering upsetting the settled case
law on the question in Wisconsin, pending further guidance from
the Supreme Court on the issue. But the State and the lead
20
No. 2011AP2680-CR.akz
opinion are confident that the Shiffra and Green courts got it
so wrong that drastic action is needed.
¶211 The lead opinion's distinctions between Ritchie and
Shiffra do not inescapably lead to the conclusion that Shiffra
must be overruled. For example, the lead opinion makes much of
the fact that the statute at issue in Ritchie contained an
exception allowing an agency to disclose records at issue to a
"court of competent jurisdiction pursuant to a court order."
Ritchie, 480 U.S. at 44. It is true that Wis. Stat. § 905.04
does not contain such an exception. But neither is the statute
one that grants a private party "the absolute authority to
shield its files from all eyes." Ritchie, 480 U.S. at 57. In
fact, Wis. Stat. § 905.04 currently contains about 11
exceptions. Wis. Stat. § 905.04(4) ("Exceptions").8 The state
statute which the Ritchie court cited as an example of an
"unqualified statutory privilege" contained no exceptions.
Ritchie, 480 U.S. at 57 (citing 42 Pa. Cons. Stat. § 5945.1(b)).
¶212 In a footnote, the Ritchie court "express[ed] no
opinion on whether the result in this case would have been
different if the statute had protected the [protective service
agency's] files from disclosure to anyone, including law-
enforcement and judicial personnel." Ritchie, 480 U.S. at 57
n.14. Wisconsin Stat. § 905.04 allows disclosure to both law-
enforcement and judicial personnel. See, e.g. Wis. Stat.
8
Coincidentally, the statute at issue in Ritchie also
contained 11 exceptions. Pennsylvania v. Ritchie, 480 U.S. 39,
43 (1987).
21
No. 2011AP2680-CR.akz
§ 905.04(4)(d) ("There is no privilege in trials for homicide
when the disclosure relates directly to the facts or immediate
circumstances of the homicide."); Wis. Stat. § 905.04(4)(e)2m.
("There is no privilege for information contained in a report of
child abuse or neglect that is provided under s. 48.981(3).").
And even if the statute did not allow such disclosure, the
Ritchie court "express[ed] no opinion" on the potential
distinction. Ritchie, 480 U.S. at 57 n.14. This hardly
supports a conclusion that Shiffra was "unsound in principle" in
extending Ritchie's principles to the facts at issue in that
case.9
¶213 Second, the lead opinion's confidentiality-vs.-
privilege distinction is not one that was emphasized by the
Ritchie court. And it is far from clear that the Ritchie
court's analysis would have been any different had the statute
at issue been a privilege statute. See, e.g., Ritchie, 480 U.S.
at 43 ("[The protective service agency] refused to comply with
the subpoena, claiming that the records were privileged under
Pennsylvania law."); id. at 52 (plurality opinion) (stating that
a statute in a prior case rendered information presumptively
confidential, then referring to that statute as creating a
9
It bears repeating here that Shiffra and Green do not
create a statutory exception to a privilege where one does not
exist. The cases do not create blanket authorization for in
camera review of privileged materials. Instead, should the
proper showing be made, and should a privilege-holder refuse to
consent to in camera review, the privilege-holder is barred from
testimony at trial and her privilege remains intact. See
Shiffra, 175 Wis. 2d at 612.
22
No. 2011AP2680-CR.akz
statutory privilege); id. at 57 ("The Commonwealth, however,
argues that no materiality inquiry is required, because a
statute renders the contents of the file privileged."). And
indeed, we are not the only jurisdiction that has failed to give
the distinction dispositive weight. Burns, 968 A.2d at 1024.
The lead opinion's purported distinction does not rise to the
level of a "special justification" warranting the elimination of
20 years of Wisconsin case law.
¶214 Finally, reading the lead opinion, one almost comes
away with the conclusion that Shiffra relied directly on Brady
rather than on Ritchie.10 Nowhere does the Ritchie court state,
as the lead opinion hesitantly admits, that the fact that the
protective service agency in that case was tasked with
investigating "cases of suspected [child] mistreatment and
neglect" thereby made it an arm of the prosecution. Indeed, the
Supreme Court cases cited by the lead opinion for its reasoning
on this point were not published until years after Ritchie, and
thus were not in the contemplation of the Ritchie court. The
lead opinion's interpretation of Ritchie may "make[] sense" in
retrospect, but it does not banish all doubt that the Ritchie
court might have had broader principles in mind at the time it
decided its opinion.
10
In fact, during the Ritchie court's discussion of whether
the criminal defendant in that case was "entitled to have the
[protective service agency] file reviewed by the trial court to
determine whether it contains information that probably would
have changed the outcome of his trial," the court cited Brady
exactly one time. Ritchie, 480 U.S. at 57.
23
No. 2011AP2680-CR.akz
¶215 To be sure, Ritchie relied on principles taken from
Brady. Ritchie, 480 U.S. at 57; see District Attorney's Office
for Third Judicial Dist. v. Osborne, 557 U.S. 52, 61 (2009)
("The Court of Appeals affirmed, relying on the prosecutorial
duty to disclose exculpatory evidence recognized in Pennsylvania
v. Ritchie, 480 U.S. 39 (1987), and Brady v. Maryland, 373 U.S.
83 (1963)."). But it is not evident that that necessarily
forecloses application of Ritchie to a broader set of
circumstances. See, e.g., Burns, 968 A.2d at 1024-25 ("Although
Ritchie involved the disclosure of records in the possession of
the State, nothing in the Ritchie Court's holding or analysis
limits its application to records held by the State. . . . From
the standpoint of the privilege holder it is immaterial whether
the holder's therapy records are in the possession of a private
party or the State. In either circumstance, the privilege
holder has the identical interest in non-disclosure."); cf.
State v. Cressey, 628 A.2d 696, 703 (N.H. 1993) (citing State v.
Gagne, 612 A.2d 899 (N.H. 1992)) ("Gagne did not distinguish
between the privileged records of a State agency and the
privileged records of a private organization. The rationale in
Gagne, balancing the rights of a criminal defendant against the
interests and benefits of confidentiality, applies equally in
both cases. A record is no less privileged simply because it
belongs to a State agency. Likewise, a defendant's rights are
no less worthy of protection simply because he seeks information
maintained by a non-public entity.").
24
No. 2011AP2680-CR.akz
¶216 Our court of appeals——in one of the numerous cases the
lead opinion would abrogate today——has rejected the notion that
Ritchie and Shiffra are about "keeping a level playing field
between the State and the defendant." Behnke, 203 Wis. 2d at
55-56. Instead, "these decisions attempt to strike a balance
between the witness's right to privacy, which is embodied in the
health care provider privileges, and the truth-seeking function
of our courts, which is rooted in the Due Process Clause of the
Fourteenth Amendment." Id. Although the lead opinion reads
Ritchie as a more-or-less clear-cut application of Brady, I am
not convinced that this is the only reasonable reading of the
Ritchie court's brief and enigmatic analysis, such that Shiffra
must be overruled. See Ritchie, 480 U.S. at 57-58.11 The
question is less about which position is correct, and more about
whether the mere possibility of error justifies such a
monumental shift in Wisconsin law. See Johnson Controls, 264
Wis. 2d 60, ¶¶94-96.
11
Other jurisdictions appear to be in accord with
Wisconsin's current approach. See Clifford F. Fishman, Defense
Access to a Prosecution Witness's Psychotherapy or Counseling
Records, 86 Or. L. Rev. 1, 18 (2007) ("Where a defendant has
established a constitutional right to the disclosure of
privileged information, but the statutory privilege is absolute
on its face, some courts have held that the witness retains the
privilege: a court cannot disclose unless the witness waives the
privilege. Absent such a waiver, if the defendant adequately
demonstrates the need for an in camera review or disclosure of
the records, the witness is precluded from testifying. If he or
she has already testified, his or her testimony is stricken from
the record. States following this approach include Connecticut,
Michigan, Nebraska, New Mexico, Wisconsin, and South Dakota"
(footnotes omitted) (citations omitted).).
25
No. 2011AP2680-CR.akz
B. This Court Should Not Modify Shiffra.
¶217 If Shiffra is not overturned, the State asks this
court to modify Shiffra to allow for alternative remedies when a
defendant makes the showing required by Green and the privilege-
holder refuses to allow the circuit court to conduct an in
camera review of the privilege-holder's records. Certain of the
justices on this court agree with the State's suggestion. I am
not yet convinced that we should modify Shiffra.
¶218 To be clear, when the Shiffra court stated that
"[u]nder the circumstances, the only method of protecting
Shiffra's right to a fair trial was to suppress [the privilege-
holder's] testimony if she refused to disclose her records," it
meant that no other method is available in these types of
cases——"[i]n this situation, no other sanction would be
appropriate." Shiffra, 175 Wis. 2d at 612.12 As a preliminary
12
The court of appeals below correctly explained:
[W]e agree with the circuit court that we are bound by
plain language in Shiffra that forecloses alternative
remedies.
. . .
Shiffra's use of "In this situation" and "Under the
circumstances," read in context, is plainly a
reference to the "situation" or "circumstance" in
which a defendant makes the required showing and the
victim refuses to authorize release of the records for
an in camera review. There is nothing in Shiffra
suggesting that the use of this language was meant to
restrict the holding to some unspecified subset of
situations or circumstances in which a defendant makes
the required showing and the victim refuses to release
records.
(continued)
26
No. 2011AP2680-CR.akz
matter, the discussion in Shiffra thus essentially disposes of
the State's arguments that there are other remedies available,
namely: (1) use of an exception in a statute not at issue, Wis.
Stat. § 146.82(2)(a)4., to compel production of privileged
records; and (2) use of a case-by-case balancing test to
determine whether a privilege-holder should be allowed to
testify even after refusing to disclose privileged records.
¶219 More specifically, the State's first proposed solution
is plainly nothing more than wishful thinking. The State would
bypass the privilege-holder's refusal to allow in camera
review——as is the privilege-holder's right under Wis. Stat.
§ 905.04(2)——by using an exception to Wis. Stat. § 146.82,
"Confidentiality of patient health care records." Section
146.82(2)(a)4. allows access to patient healthcare records
rendered confidential by that statute "without informed consent"
State v. Lynch, 2015 WI App 2, ¶¶42-43, 359 Wis. 2d 482, 859
N.W.2d 125.
I recognize that Shiffra's author has voiced, in an
unpublished dissent, his disagreement with this interpretation
of Shiffra. State v. Johnson, No. 2011AP2864-CRAC, unpublished
slip op., ¶24 (Wis. Ct. App. Apr. 18, 2012), aff'g as modified
by 2013 WI 59, 348 Wis. 2d 450, 832 N.W.2d 609. Ignoring other
problems with reliance on this type of post-decision "judicial
history," I note that two other judges joined the Shiffra
opinion and may have had a different view of the case. I also
note that both the majority in the unpublished Johnson case and
the court of appeals below disagree with the Johnson dissent's
reading of Shiffra. See Johnson, unpublished slip op., ¶¶16-18;
Lynch, 359 Wis. 2d 482, ¶¶42-43. I agree with these five judges
that Shiffra's language does not admit of any alternative
remedies.
27
No. 2011AP2680-CR.akz
pursuant to "a lawful order of a court of record."
§ 146.82(2)(a)4.
¶220 It would seem to go without saying that an exception
in one statute ordinarily does not operate as an exception in
another statute. Wisconsin Stat. § 146.82 currently contains
almost two dozen exceptions. Wis. Stat. § 146.82(2). Should
all of them operate as exceptions to Wis. Stat. § 905.04(2)?
Such an outcome could only be achieved by legislating words into
the statutory text.
¶221 The fact that Wis. Stat. § 905.04(2) and Wis. Stat.
§ 146.82 may be in pari materia does not alter the analysis.
"[S]tatutes which are in pari materia are to be read together
and harmonized where that is possible." State v. Walker, 75
Wis. 2d 93, 102, 248 N.W.2d 410 (1977) (citation omitted); see
also In pari materia, Black's Law Dictionary 911 (10th ed. 2014)
("It is a canon of construction that statutes that are in pari
materia may be construed together, so that inconsistencies in
one statute may be resolved by looking at another statute on the
same subject."). But there is nothing to harmonize here; the
two statutes are consistent with each other. There might be
legitimate reasons for the existence of a judicial-order
exception in one statute but not the other. See, e.g., State v.
Denis L. R., 2005 WI 110, ¶57 n.21, 283 Wis. 2d 358, 699
N.W.2d 154 (Wis. Stat. § 905.04 and Wis. Stat. § 146.82 "must be
read together in pari materia to avoid any conflicts" (emphasis
added).). Further, there is no ambiguity to resolve in Wis.
Stat. § 905.04(2) for purposes of this case that would require
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No. 2011AP2680-CR.akz
reference to Wis. Stat. § 146.82; Wisconsin Stat. § 905.04(2) is
clear in its effect. We cannot ignore the plain language of the
privilege statute and create an exception where none exists
simply to reach a desired result. That is why, under the
Shiffra-Green framework, if the privilege-holder does not
consent to review of her records, those records are not
reviewed——even if a defendant makes a Green showing.13
¶222 The State's second proposed remedy is for courts to
"balance," in each individual case, "the defendant's
constitutional rights against the witness's right to privacy in
her privileged records" and against the State's interests. Put
differently, the State argues that after a defendant makes a
Green showing and the privilege-holder refuses to consent to
review of her records, courts should conduct a balancing
13
At one point in its brief the State characterizes use of
Wis. Stat. § 146.82(2)(a)4. as a "graft[ing]" of a
"constitutional exception" to Wis. Stat. § 905.04. The State
seems to be arguing that § 905.04 would be unconstitutional as
applied in certain cases because it does not contain an
exception allowing the defendant access to privileged records.
One of the benefits of the Shiffra-Green framework is that
it alleviates concerns about the protection of the defendant's
constitutional rights without requiring consideration of the
potential invalidation of Wis. Stat. § 905.04. Cf. Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006)
("Generally speaking, when confronting a constitutional flaw in
a statute, we try to limit the solution to the problem. . . .
[W]e try not to nullify more of a legislature's work than is
necessary, for we know that '[a] ruling of unconstitutionality
frustrates the intent of the elected representatives of the
people'" (citation omitted).); Shelby County, Ala. v. Holder,
570 U.S. ___, 133 S. Ct. 2612, 2631 (2013) ("Striking down an
Act of Congress 'is the gravest and most delicate duty that this
Court is called on to perform'" (citation omitted).).
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No. 2011AP2680-CR.akz
analysis in order to determine whether the privilege-holder may
nonetheless testify. The problem with this suggestion is that
this balancing is already built into the Shiffra-Green
framework. To be clear, the defendant is not entitled to a
fishing expedition of the alleged victim's privileged records.
In each case, in order to establish any claim to privileged
records, a defendant must "set forth, in good faith, a specific
factual basis demonstrating a reasonable likelihood that the
records contain relevant information necessary to a
determination of guilt or innocence and . . . not merely
cumulative to other evidence available to the defendant."
Green, 253 Wis. 2d 356, ¶34. The interests of a defendant who
has made this showing are weightier than the interests of a
defendant who has not made this showing, and sufficiently
weighty to require preclusion of a privilege-holder's testimony,
should the privilege-holder not consent to release of the
records. Further weighing is unnecessary and inappropriate.
See Shiffra, 175 Wis. 2d at 608-09 (analogizing the defendant's
initial burden to "cases in which a defendant seeks disclosure
of a government informant's identity," and stating, "[b]oth
situations require us to balance the defendant's constitutional
right to a fair trial against the state's interest in protecting
its citizens by upholding a statutorily created privilege.").
¶223 From all that has already been said, it is easy to see
why neither of the State's proposals provide an adequate remedy.
The first solution ignores the privilege-holder's statutory
right. The second solution ignores the defendant's
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No. 2011AP2680-CR.akz
constitutional right. Both thus upset the careful balance
struck by Shiffra and Green. See Solberg, 211 Wis. 2d at 387.
III. THE DISPOSITION OF THIS CASE
¶224 The amalgam of opinions in this case is potentially
confusing. In Johnson, 348 Wis. 2d 450 (per curiam),
reconsideration granted, 353 Wis. 2d 119 (per curiam), a similar
jumble of opinions required this court to grant a motion for
reconsideration to clarify its earlier opinion. See id.
Therefore, before I conclude, I wish to discuss briefly the
disposition of this case in order to provide guidance to the
litigants below so that the parties need not file, as they did
in Johnson, a motion in order to obtain clarification of the
effect of the court's decision. Simply stated, the parties in
this case are in the same position as the parties in Johnson:
the decision of the court of appeals remains the law of the
case.
¶225 More specifically, Justice Gableman, Chief Justice
Roggensack, and Justice Rebecca Bradley would overrule Shiffra
and Green and reverse the decision of the court of appeals.
But, because these three justices do not command a majority of
the court, Shiffra and Green are not overruled.
¶226 Justice Ann Walsh Bradley and Justice Abrahamson would
modify the Shiffra-Green framework and reverse the decision of
the court of appeals. But because these two justices do not
31
No. 2011AP2680-CR.akz
command a majority of the court, the Shiffra-Green framework is
not modified.14
¶227 Although these five justices would all reverse the
decision of the court of appeals, no majority agrees on a
rationale for doing so. As no precedent is changed by the
opinions of these five justices, reversal of the court of
appeals would run contrary to existing precedent, namely Shiffra
and Green. See Johnson, 353 Wis. 2d 119, ¶5 (per curiam) ("The
14
To be clear, adhering to Shiffra and Green means adhering
to the single remedy established in that line of cases:
preclusion of the privilege-holder's testimony under the
circumstances specified in those cases. As we made clear in our
opinion granting the motion for reconsideration in Johnson, the
privilege-holder's "decision to produce and the consequence of
whether testimony is allowed cannot be separated." State v.
Johnson, 2014 WI 16, ¶5, 353 Wis. 2d 119, 846 N.W.2d 1 (per
curiam). By permitting additional remedies, Justice Ann Walsh
Bradley and Justice Abrahamson would, like the members of the
lead opinion, overrule Shiffra (albeit on grounds separate from
those relied upon by the members of the lead opinion) and
reverse the decision of the court of appeals below.
Although Justice Ann Walsh Bradley and Justice Abrahamson
agree with the court of appeals that Lynch made the Green
showing entitling him to in camera review of the complainant's
privileged mental health records, that part of the decision of
the court of appeals is not disputed, is not currently before
this court, and is not analyzed in the lead opinion. Instead,
this court is addressing whether the Shiffra-Green framework
should be overruled.
The court of appeals below applied the Shiffra-Green
framework as established in our case law, including the single
remedy provided for under that framework. See Lynch, 359
Wis. 2d 482, ¶¶39, 42. Justice Ann Walsh Bradley and Justice
Abrahamson would depart from that court's straightforward
application of Shiffra and Green. Thus, regardless of their own
descriptions of their opinion, Justice Ann Walsh Bradley and
Justice Abrahamson would simply reverse the decision of the
court of appeals.
32
No. 2011AP2680-CR.akz
prior per curiam was incorrect to convey that a majority could
be reached by separating whether the medical records must be
produced from whether the victim may testify because such a
separation would produce new criteria that a majority of the
court has not authorized.").
¶228 Finally, Justice Prosser and I would today reaffirm
Shiffra, Green, and the Shiffra-Green framework and would affirm
the decision of the court of appeals. But as two justices, we
do not command a majority of the court.
¶229 Nevertheless, "no [four] justices reach agreement to
either affirm, reverse, or modify the decision of the court of
appeals consistent with precedent. Consequently, the court of
appeals decision remains the law of the case." Johnson, 353
Wis. 2d 119, ¶2 (per curiam). In other words, the law in
Wisconsin remains as it was before the appeal to this court
occurred. This case should not be read to overturn or modify
any existing law, including Shiffra and Green.15
IV. CONCLUSION
¶230 We should tread lightly in this complex area of the
law, upsetting precedent only when compelled to do so by some
"special justification." This court, myself included, can and
does overrule precedent when appropriate. Ultimately, however,
it is simply not evident that Shiffra is so unsound in principle
as to require this court to overturn it and its progeny. The
lead opinion wanders far beyond the confines of the briefing and
15
Hence, although I write in dissent, I dissent from the
lead opinion; I agree with the functional outcome of this case.
33
No. 2011AP2680-CR.akz
argument in this case, discarding the Shiffra-Green framework
despite incomplete knowledge of the many applicable
constitutional considerations. The potential for error here
(the same type of error which the State and lead opinion allege
occurred in Shiffra) is substantial. The fractured nature of
today's opinion, and of the opinion in Johnson, 348 Wis. 2d 450
(per curiam), demonstrate, at the very least, the doubtfulness
of whether Shiffra is in fact so incoherent as to justify its
rejection. When there is this much turmoil regarding the
vitality or not of a line of cases, it may well be advisable to
err on the side of caution. Johnson Controls, 264 Wis. 2d 60,
¶94 ("A court's decision to depart from precedent is not to be
made casually. It must be explained carefully and fully to
insure that the court is not acting in an arbitrary or
capricious manner. A court should not depart from precedent
without sufficient justification."). "Circuit courts and
counsel have functioned well using the Shiffra/Green analysis
for many years . . . ." Johnson, 353 Wis. 2d 119, ¶12 (per
curiam).
¶231 This court is more than simply the sum of its current
members. It is an institution that endures long after any one
individual justice leaves the bench. The public needs
certainty——a stable rule of law——not what amounts to a
collection of several law review articles by the members of this
court. The lead opinion may, in time, be proven correct by the
Supreme Court of the United States. Or, this court may be
compelled to revisit the Shiffra doctrine on the basis of future
34
No. 2011AP2680-CR.akz
developments in related case law. But the State and the lead
opinion have not today provided the "special justification"
required to decide that we were wrong, in Green, to hew to the
Shiffra line of cases. Green, 253 Wis. 2d 356, ¶21 n.4.
¶232 I conclude that this court should not abandon the
Shiffra-Green framework and would therefore affirm the decision
of the court of appeals.16
¶233 For the foregoing reasons, I respectfully dissent.
16
The parties do not dispute whether the circuit court and
the court of appeals were correct in concluding that Lynch met
the Green showing for in camera review of the files at issue.
Without briefing, I do not address the question. However, I
emphasize again that the Green showing is not meant to be
perfunctory. See Green, 253 Wis. 2d 356, ¶¶33-35.
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No. 2011AP2680-CR.akz
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