State v. Alan S. Johnson

2020 WI App 73COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2019AP664-CR
† Petition for Review filed
Complete Title of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
T. A. J.,
APPELLANT,
V.
ALAN S. JOHNSON,
DEFENDANT-RESPONDENT.†
Opinion Filed: October 29, 2020
Submitted on Briefs: December 6, 2019
JUDGES: Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the appellant, the cause was submitted on the briefs of
Andrea K. Rufo of Legal Action of Wisconsin, Inc., Racine.
Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
briefs of Sarah L. Burgundy, assistant attorney general, and Joshua L.
Kaul, attorney general.
On behalf of the defendant-respondent, the cause was submitted on the
briefs of Nathan J. Wojan of Petit & Dommershausen, S.C., Menasha.
A nonparty brief was filed by Ellen Henak and Robert R. Henak of
Henak Law Office, S.C., Milwaukee, for Counsel for Wisconsin
Association of Criminal Defense Lawyers.
2
2020 WI App 73COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 29, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP664-CR Cir. Ct. No. 2017CF56
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
T. A. J.,
APPELLANT,
V.
ALAN S. JOHNSON,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Waupaca County:
RAYMOND S. HUBER, Judge. Reversed and cause remanded with directions.
Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.
2019AP664-CR
¶1 FITZPATRICK, P.J. Alan Johnson is charged with multiple crimes
stemming from Johnson’s alleged sexual assault of T. 1 T. appeals an order of the
Waupaca County Circuit Court which determined that T. does not have standing in
this criminal case to oppose a motion brought by Johnson, as yet undecided by the
circuit court, requesting an in camera review by the circuit court of T.’s health care
records for potential release to the parties for use at trial.2 In deciding that T. does
not have standing to address this issue with the court, the circuit court relied on this
court’s holding in Jessica J.L. v. State, 223 Wis. 2d 622, 589 N.W.2d 660 (Ct. App.
1998). We reverse the order of the circuit court because we conclude that: (1) a
recent amendment to the Wisconsin Constitution regarding the rights of crime
victims grants a crime victim such as T. standing to oppose, and to be heard
regarding his or her opposition to, a defendant’s motion for an in camera review of
the victim’s health care records and, therefore, abrogates the pertinent holding in
Jessica J.L.; (2) this grant in the recent constitutional amendment applies
retrospectively to T.’s request for standing to oppose, and to be heard regarding his
opposition to, Johnson’s pending motion for an in camera review of T.’s health care
records.
BACKGROUND
¶2 The material facts are not in dispute. Johnson is charged with multiple
criminal offenses stemming from alleged sexual assaults of T. Johnson filed in the
1
We refer to the alleged victim by the initial T. See WIS. STAT. RULE 809.86(4) (2017-
18). All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
By a previous order, this court granted T.’s petition for leave to appeal the circuit court’s
nonfinal order. See WIS. STAT. RULE 809.50(3).
2
2019AP664-CR
circuit court a motion for the court to conduct an in camera inspection of T.’s health
care records in order to determine whether those should be shared with the parties.3
Johnson’s motion is commonly referred to as a Shiffra-Green motion.
¶3 We pause to summarize pertinent discussion in Shiffra and Green.
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, established a judicial
process by which a criminal defendant may trigger an in camera review by the
circuit court of an alleged victim’s health care records in order for the court to
determine whether any records should be released to the parties for potential use at
trial. See Shiffra, 175 Wis. 2d at 608; Green, 253 Wis. 2d 356, ¶32. In Shiffra,
this court stated that a defendant may trigger an in camera inspection of an alleged
victim’s health care records by making a preliminary showing that the records are
material to the defense. Shiffra, 175 Wis. 2d at 608. In Green, our supreme court
clarified that the preliminary showing of materiality requires that the defendant
“show a ‘reasonable likelihood’ that the records will be necessary to a determination
of guilt or innocence.” Green, 253 Wis. 2d 356, ¶32 (quoted source omitted). The
supreme court further stated in Green that the preliminary showing must be “fact-
specific … 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. If a defendant makes a sufficient showing, the circuit court must review the
3
Johnson also filed a motion seeking an in camera review of the health care records of a
second alleged sexual assault victim named in the information. The circuit court determined that
the second alleged victim also lacks standing to oppose Johnson’s motion and denied the request
on that basis. Whether the circuit court properly denied the request of that alleged victim is not an
issue on appeal.
Separately, given our exclusive focus on the standing and retrospectivity issues, we do not
address the nature of the medical records at issue or arguments from anyone as to why those would
or would not be material at trial.
3
2019AP664-CR
health care records in camera to determine whether the records “have any
independent probative value.” Shiffra, 175 Wis. 2d at 611. However, an alleged
victim may refuse to release his or her health care records for the in camera review.
See, e.g., id. at 612; see also WIS. STAT. § 146.82(1). If the victim refuses, his or
her testimony is suppressed in order to protect the defendant’s right to a fair trial.
See Shiffra, 175 Wis. 2d at 612.
¶4 The issue in this appeal is not whether T. may refuse to disclose his
health care records for an in camera review. Rather, T. asserts that he has standing
in this criminal case in the circuit court to oppose the motion, and to argue that
Johnson has failed in his motion to make a sufficient showing to obtain the in
camera review.
¶5 The State did not take a position in the circuit court opposing
Johnson’s Shiffra-Green motion. T. retained counsel and filed a pleading in the
circuit court arguing that Johnson’s Shiffra-Green motion should be denied
because, according to T., Johnson’s motion fails to meet the requirements to obtain
an in camera review of his health care records. As part of this pleading, T. took the
position that he has standing to oppose Johnson’s Shiffra-Green motion, and such
standing allows T. to make arguments in court and in writing opposing that motion.
Johnson challenged T.’s standing to oppose Johnson’s Shiffra-Green motion. The
State took no position in the circuit court on whether T. has standing in these
circumstances.
¶6 The circuit court determined that T. does not have standing to oppose,
or to make arguments to the court regarding his opposition to, Johnson’s Shiffra-
Green motion. The circuit court relied on this court’s holding in Jessica J.L. that
an alleged victim does not have standing to object to, or make arguments to the court
4
2019AP664-CR
regarding, a defendant’s Shiffra-Green motion. See Jessica J.L., 223 Wis. 2d at
625-26. The circuit court also concluded that our holding regarding standing in
Jessica J.L. has not been abrogated by any Wisconsin Statute enacted subsequent
to issuance of our opinion in Jessica J.L. As noted, T. petitioned this court for leave
to appeal the circuit court’s nonfinal order, and we granted the petition.4
¶7 After briefing was completed by the parties to this appeal,5 a majority
of Wisconsin voters in the April 2020 election voted in favor of a constitutional
amendment sometimes known as “Marsy’s Law” (which we will refer to as the
“2020 constitutional amendment”).6 The 2020 constitutional amendment alters
article I, section 9m(2)(n) of the Wisconsin Constitution by setting forth rights of
crime victims, authorizing victims to assert those rights in court in some
circumstances, and affording remedies for violations of those rights. See
https://docs.legis.wisconsin.gov/misc/lrb/reading_the_constitution/crime
_victims_rights_amendment_5_1.pdf (last visited October 23, 2020).
¶8 We invited supplemental briefing from the parties to this appeal on
several issues related to the passage of the 2020 constitutional amendment.7
4
We also ordered that the State be named as an additional respondent in this appeal with
the opportunity to file a respondent’s brief.
5
For convenience we use the phrase “parties to this appeal” to refer collectively to
Johnson, the State, and T., which is not to say that T. is or will be a party in the underlying criminal
case.
6
The amendment was approved twice by the legislature prior to April 2020. See
https://docs.legis.wisconsin.gov/2019/proposals/sjr2 (last visited October 23, 2020).
7
We invited proposed amici, the Wisconsin District Attorneys Association and the
Wisconsin Association of Criminal Defense Lawyers, to file briefs regarding those same issues.
The Wisconsin District Attorneys Association declined to do so. Attorney Ellen Henak, on behalf
of the Wisconsin Association of Criminal Defense Lawyers, filed an amicus brief, and we thank
Attorney Henak for her efforts and input.
5
2019AP664-CR
DISCUSSION
¶9 T. and the State argue that the circuit court erred in concluding that T.
does not have standing to oppose, and to make arguments to the circuit court
regarding his opposition to, Johnson’s Shiffra-Green motion based on the holding
of Jessica J.L. According to T. and the State, that holding has been abrogated by
subsequent authorities.
¶10 T. argues that the 2020 constitutional amendment does not apply to
his standing or his substantive position opposing Johnson’s pending Shiffra-Green
motion, and that Wisconsin law “requires this Court to decide this case” based on
the non-2020 amendment-related arguments that the parties to this appeal made to
this court in their “original briefs.” Specifically, T. contends that the holding
concerning standing in Jessica J.L. has been abrogated by case law and statutes
enacted subsequent to the Jessica J.L. opinion but prior to passage of the 2020
constitutional amendment.
¶11 The State argues that the 2020 constitutional amendment grants crime
victims standing to oppose, and to make arguments to the court regarding their
opposition to, a defendant’s Shiffra-Green motion, and also that the amendment
applies to current and future crime victims, including in cases such as this one, “in
which the litigation commenced before the effective date [of the constitutional
amendment].”8
8
Because T. sometimes, in the alternative, joins the State in arguing that the 2020
constitutional amendment applies to grant him standing to oppose Johnson’s Shiffra-Green
motion, for simplicity we will refer to those arguments as the State’s arguments.
6
2019AP664-CR
¶12 Johnson relies on the pertinent holding in Jessica J.L. He contends
that no other authorities, including the 2020 constitutional amendment, abrogate the
holding of Jessica J.L.
¶13 For the following reasons, we conclude that the 2020 constitutional
amendment grants crime victims such as T. standing to oppose, and to make
arguments supporting their opposition to, a defendant’s Shiffra-Green motion and,
therefore, abrogates the holding regarding standing in Jessica J.L. We also
conclude that this grant in the 2020 constitutional amendment applies
retrospectively to T.’s request for standing to oppose, and to make arguments to the
court regarding his opposition to, Johnson’s Shiffra-Green motion.9
I. Jessica J.L. and the 2020 Constitutional Amendment.
¶14 We begin our analysis by discussing, for context, two preliminary
matters. The first is the holding of Jessica J.L. regarding standing of alleged crime
victims to oppose a Shiffra-Green motion. The second concerns the effective date,
and terms, of the 2020 constitutional amendment.
A. Jessica J.L.
¶15 To repeat, in Jessica J.L., we concluded that an alleged victim does
not have standing to object to a defendant’s Shiffra-Green motion requesting an in
camera review by the circuit court of the alleged victim’s health care records for
9
Based on those dispositive conclusions, we do not consider other arguments raised by
the parties to this appeal, including their arguments regarding legal authorities subsequent to the
Jessica J.L. opinion but prior to passage of the 2020 constitutional amendment. See Sweet v.
Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (stating that, if a decision on one point
disposes of the appeal, the court will not decide other issues raised).
7
2019AP664-CR
potential release to the parties for use at trial. See Jessica J.L., 223 Wis. 2d at 626,
630.
¶16 The defendant in Jessica J.L. requested an in camera review of the
health care records of the alleged victim, Jessica. Id. at 626. The State did not
oppose the in camera review and waived its right to request a hearing at which the
defendant would have been required to establish that the records sought to be
reviewed and potentially used at trial were material to his defense.10 Id. at 627.
Jessica’s guardian ad litem filed a pleading in the circuit court asking the court “to
‘reopen’ the proceedings in regard to the materiality of the records [the defendant]
had sought.” Id. The circuit court denied the guardian ad litem’s motion on the
ground that Jessica and her guardian ad litem lacked standing in the criminal case
to oppose the defendant’s request for an in camera review of Jessica’s health care
records. Id.
¶17 On appeal, this court affirmed, concluding that only those attorneys
authorized by law to prosecute the charged crime on behalf of the State, the district
attorney or an appointed special prosecutor, and of course counsel for each
defendant, may take positions before the circuit court in a criminal prosecution on
the issue of a defense request for review of victim medical records. Id. at 630 (citing
WIS. STAT. §§ 978.045 and 978.05(1)). On this basis we concluded that Jessica and
10
Jessica J.L. v. State, 223 Wis. 2d 622, 589 N.W.2d 660 (Ct. App. 1998), was decided
after Shiffra but before Green. Accordingly, at the time Jessica J.L. was decided, a defendant was
required to show only that the records sought were material to his or her defense. See id. at 626-
27; State v. Shiffra, 175 Wis. 2d 600, 605, 499 N.W.2d 719 (Ct. App. 1993). The parties to this
appeal do not contend that the later holding of State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646
N.W.2d 298, which modified the holding in Shiffra, makes any material difference to whether the
pertinent statement in Jessica J.L. governs the result in this appeal.
8
2019AP664-CR
her guardian ad litem did not have standing to oppose the defendant’s motion in the
criminal prosecution. Id. at 626, 630.
B. 2020 Constitutional Amendment.
¶18 The 2020 constitutional amendment became effective on May 4,
2020, the date the amendment was certified. See WIS. STAT. § 7.70(3)(h) (providing
that, when a constitutional amendment approved by the voters does not expressly
indicate the effective date, the amendment becomes effective when an authorized
person certifies that the amendment is approved); see also State v. Gonzales, 2002
WI 59, ¶¶13, 30, 253 Wis. 2d 134, 645 N.W.2d 264 (stating a constitutional
amendment becomes effective after certification).
¶19 The 2020 constitutional amendment states in pertinent part:
Victims of crime. SECTION 9m.
(1)
(a) In this section, … “victim” means any of the
following:
1. A person against whom an act is committed that
would constitute a crime if committed by a competent
adult.[11]
….
(2) In order to preserve and protect victims’ rights
to justice and due process throughout the criminal and
juvenile justice process, victims shall be entitled to all of the
11
The parties to this appeal do not dispute that, although Johnson has not been convicted
of any crime against T., T. is a “victim” as defined in the 2020 constitutional amendment.
Accordingly, for the remainder of this opinion, we refer to T. variously as a “victim,” “crime
victim,” or “alleged victim.”
In addition, we do not in this appeal decide the rights, if any, of other persons who come
within the amendment’s definition of “victim” not quoted in the text, such as family members, to
be heard in regard to a defendant’s Shiffra-Green motion.
9
2019AP664-CR
following rights, which shall vest at the time of victimization
and be protected by law in a manner no less vigorous than
the protections afforded to the accused:
….
(i) Upon request, to be heard in any proceeding
during which a right of the victim is implicated, including
release, plea, sentencing, disposition, parole, revocation,
expungement, or pardon.
….
(L) To refuse an interview, deposition, or other
discovery request made by the accused or any person acting
on behalf of the accused.
….
(3) Except as provided under sub. (2)(n),[12] all
provisions of this section are self-executing….
(4)
(a) In addition to any other available enforcement of
rights or remedy for a violation of this section or of other
rights, privileges, or protections[13] provided by law, the
victim, the victim’s attorney or other lawful representative,
or the attorney for the government upon request of the victim
may assert and seek in any circuit court or before any other
authority of competent jurisdiction, enforcement of the
rights in this section and any other right, privilege, or
protection afforded to the victim by law. The court or other
authority with jurisdiction over the case shall act promptly
on such a request and afford a remedy for the violation of
any right of the victim. The court or other authority with
jurisdiction over the case shall clearly state on the record the
reasons for any decision regarding the disposition of a
victim’s right and shall provide those reasons to the victim
or the victim’s attorney or other lawful representative.
12
The parties to this appeal do not contend that article I, section 9m(2)(n) of the Wisconsin
Constitution is germane to our analysis.
13
The terms “privileges” and “protections” are synonymous with “rights.” Gabler v.
Crime Victims Rts. Bd., 2017 WI 67, ¶66 n.3, 376 Wis. 2d 147, 897 N.W.2d 384 (Abrahamson, J.,
dissenting) (interpreting the terms “privileges” and “protections” found in a previous version of
WIS. CONST. art. I, § 9m.).
10
2019AP664-CR
(b) Victims may obtain review of all adverse
decisions concerning their rights as victims by courts or
other authorities with jurisdiction under par. (a) by filing
petitions for supervisory writ in the court of appeals and
supreme court.
….
(6) This section is not intended and may not be
interpreted to supersede a defendant’s federal constitutional
rights or to afford party status in a proceeding to any victim.
WIS. CONST. art. I, § 9m.
II. Standard of Review and Interpretation of the Wisconsin
Constitution and Statutes.
¶20 The issues posed in this case require us to interpret the Wisconsin
Constitution and statutes. We now summarize our standard of review and applicable
authorities concerning the interpretation of the Wisconsin Constitution and statutes.
¶21 Whether the victim of a crime has standing to file pleadings in, and
make arguments to, the circuit court opposing a Shiffra-Green motion brought by
the victim’s alleged perpetrator is an issue of law that we review de novo.
Jessica J.L., 223 Wis. 2d at 628; see also State v. Popenhagen, 2008 WI 55, ¶23,
309 Wis. 2d 601, 749 N.W.2d 611 (“A determination of standing presents a question
of law.”).
¶22 Interpretation of our state constitution presents an issue of law that
this court decides de novo. Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI
107, ¶16, 295 Wis. 2d 1, 719 N.W.2d 408. We construe constitutional amendments
“‘so as to promote the object[ives] for which they were framed and adopted.’” State
v. Cole, 2003 WI 112, ¶10, 264 Wis. 2d 520, 665 N.W.2d 328 (quoting Thompson
v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996)); Dairyland, 295 Wis. 2d
112019AP664-CR
1, ¶19. The meaning is determined “by ascertaining the general purpose of the
whole … and the remedy sought to be applied.” Kayden Indus., Inc. v. Murphy,
34 Wis. 2d 718, 729-730, 150 N.W.2d 447 (1966). When interpreting a
constitutional provision, courts examine three primary sources: the plain language
of the provision, the constitutional debates and practices of the time, and the earliest
interpretations of the provision by the legislature as manifested through the first
legislative action following adoption. Dairyland, 295 Wis. 2d 1, ¶19; Schilling v.
State Crime Victims Rts. Bd., 2005 WI 17, ¶16, 278 Wis. 2d 216, 692 N.W.2d 623.14
¶23 The interpretation of a statute presents an issue of law that we
determine de novo. Pasko v. City of Milwaukee, 2002 WI 33, ¶23, 252 Wis. 2d 1,
643 N.W.2d 72. “[T]he purpose of statutory interpretation is to determine what the
statute means so that it may be given its full, proper, and intended effect.” State ex
rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681
N.W.2d 110. “We assume that the legislature’s intent is expressed in the statutory
language.” Id.III. Application of the 2020 Constitutional Amendment to
Johnson’s Shiffra-Green Motion.
¶24 We conclude that the pertinent provisions of the 2020 constitutional
amendment grant a crime victim, such as T., standing to oppose and to make
arguments supporting his or her opposition to a defendant’s Shiffra/Green motion
for an in camera review, and the amendment to this extent abrogates Jessica J.L.
We also conclude that the pertinent provisions of the 2020 constitutional
14
The parties to this appeal have provided no material information, and our own search
has revealed none, regarding the constitutional debates in the legislature concerning the 2020
constitutional amendment. In addition, there have been no interpretations of the provision by the
legislature through legislative action following adoption of the 2020 constitutional amendment.
12
2019AP664-CR
amendment apply retrospectively to T.’s assertion of standing to oppose Johnson’s
pending Shiffra-Green motion that was filed before the effective date of the
amendment. We explain each conclusion in turn.
A. The 2020 Constitutional Amendment Grants Crime Victims Standing to
Oppose a Defendant’s Shiffra/Green Motion, and Abrogates Jessica J.L.
¶25 The 2020 constitutional amendment grants crime victims rights using
broad language. Pertinent here, the amendment subsections (2) and (2)(i) state that
a victim has the right to be heard in any proceeding “during which a right of the
victim is implicated,” and that these and other rights of the victim must be “protected
by law in a manner no less vigorous than the protections afforded to the accused.”
See WIS. CONST. art. I, § 9m(2) and (2)(i). Paragraph (4)(a) states that a victim may
“assert and seek” in circuit court rights delineated in the amendment and “any other
right[s], privilege[s], or protection[s] afforded to the victim by law.” See id. art. I,
§ 9m(4)(a). It is undisputed that T. has rights to confidentiality and privilege
regarding his health care records. See WIS. STAT. §§ 146.82(1) and 905.04(2).
¶26 From those provisions of Wisconsin law, it is manifest that:
 T. has the right to be heard in a circuit court proceeding that implicates
his rights or privileges;
 T.’s right to be heard when his rights are implicated must be protected
in a no less vigorous manner than is Johnson’s right to be heard when
his rights or privileges are implicated; and
 T.’s rights and privileges include the confidentiality and privilege
regarding his health care records.
13
2019AP664-CR
With those propositions in mind, the only reasonable conclusion that can be drawn
is that the 2020 constitutional amendment grants T. standing to oppose Johnson’s
Shiffra-Green motion for an in camera review of T.’s health care records.
¶27 Case law can be superseded by statute or constitutional amendment.
See, e.g., State v. Endicott, 2001 WI 105, ¶13, 245 Wis. 2d 607, 629 N.W.2d 686and State v. Hayes, 2015 WI App 71, ¶8 n.3, 365 Wis. 2d 174, 870 N.W.2d 478(both opinions recognize that a governing principle in a prior case was superseded
by subsequently enacted legislation); see also Kayden, 34 Wis. 2d at 731. In view
of our conclusion that the 2020 constitutional amendment grants T. standing to
oppose, and make arguments objecting to, Johnson’s pending Shiffra-Green motion
for an in camera review of T.’s confidential and privileged health care records, it
then follows that the amendment abrogates Jessica J.L.
¶28 Johnson’s arguments that the 2020 constitutional amendment does not
apply retrospectively to the issue of T.’s standing to oppose his Shiffra-Green
motion are intertwined with Johnson’s arguments that the amendment does not
abrogate Jessica J.L. We discuss each of these arguments in the next section of this
opinion.
B. The 2020 Amendment Applies Retrospectively to the Issue of T.’s
Standing to Oppose Johnson’s Shiffra-Green Motion.
¶29 Whether a constitutional amendment operates retrospectively on a
particular issue turns on whether there is “express indication” of an intent to make
it retrospective on that issue. See Dairyland, 295 Wis. 2d 1, ¶22; Kayden, 84 Wis.
2d at 732 (“No intention to make the amendment retrospective in operation is clearly
apparent from its terms.”). As a result, we now consider whether there is express
indication from the legislative history, the ratification campaign concerning the
14
2019AP664-CR
amendment, the self-executing nature of the amendment, or the terms of the 2020
constitutional amendment, that it applies retrospectively to the issue of T.’s standing
to oppose Johnson’s Shiffra-Green motion.
1. Legislative History.
¶30 In determining whether the 2020 constitutional amendment applies
retrospectively to the issue here, we may consider pertinent legislative history of the
amendment. See Dairyland, 295 Wis. 2d 1, ¶¶24-36. The parties have not offered
any pertinent legislative history, and our own research reveals nothing in the
legislative history, that could shed light on this issue.
2. Ratification Campaign.
¶31 The ratification campaign surrounding the 2020 constitutional
amendment may also be considered in determining if the amendment applies
retrospectively. See id., ¶37. Courts are to presume that, when there is pertinent
public information provided to them, “the citizens of Wisconsin are familiar with
the elements of the constitution and with the laws, and that the information used to
educate the voters during the ratification campaign provides evidence of the voters’
intent.” Id.
¶32 Attorney General Kaul’s public, explanatory statement regarding the
2020 constitutional amendment does not indicate whether any provision of the
amendment is intended to be applied prospectively or retrospectively. Attorney
General Josh Kaul, Explanatory statement for proposed constitutional amendment
(February 27, 2020), https://elections.wi.gov/siges/elections.wi.gov/files/2020-
03/Esigned_Marsy%27s%20Law%20explanatory%20statement_02%2027%2020
20.pdf (last visited Oct. 23, 2020).
15
2019AP664-CR
¶33 The ballot question presented to Wisconsin voters concerning the
amendment read as follows:
Additional rights of crime victims. Shall
section 9m of article I of the constitution, which gives
certain rights to crime victims, be amended to give crime
victims additional rights, to require that the rights of crime
victims be protected with equal force to the protections
afforded the accused while leaving the federal constitutional
rights of the accused intact, and to allow crime victims to
enforce their rights in court?
The ballot question does not indicate an intention that the amendment as a whole,
or any part of it, apply prospectively or retrospectively.
3. Amendment is Self-Executing.
¶34 In determining whether the amendment applies retrospectively to the
issue here, we may also consider whether the 2020 constitutional amendment is
“self-executing,” meaning that the amendment is given effect without the necessity
of additional legislative action. See Kayden, 34 Wis. 2d at 731-32 (discussing the
self-executing nature of a constitutional amendment in determining if there is
intention that the constitutional amendment is “retrospective in operation”); see also
Schilling, 278 Wis. 2d 216, ¶15 (“We have also explained that ‘[a] constitutional
provision is self-executing if no legislation is necessary to give effect to it, and if
there is nothing to be done by the legislature to put it in operation.’” (quoting
Kayden, 34 Wis. 2d at 731)). Subsection (3) of the amendment states that, with one
exception not pertinent here, “all provisions of this section are self-executing.” See
WIS. CONST. art. I, § 9m(3). Accordingly, the amendment has been put into
operation without need for further action by the legislature. While not dispositive,
the self-executing nature of the amendment as a whole is an indication that it was
16
2019AP664-CR
intended to apply to motions in pending criminal cases, such as Johnson’s Shiffra-
Green motion.15
4. Language of the Amendment.
¶35 We now consider pertinent language of the 2020 constitutional
amendment, beyond the “self-executing” concept just addressed, regarding
retrospective application of the amendment to the issue here.
¶36 Subsection (2) delineates numerous crime victims’ rights. See WIS.
CONST. art. I, § 9m(2). Subsection (2) states that those rights “shall vest at the time
of victimization and be protected by law in a manner no less vigorous than the
protections afforded to the accused.” See id. The State argues that this language,
that victim rights “shall vest at time of victimization,” establishes the intent that the
amendment apply retrospectively to the issue of T.’s standing to oppose Johnson’s
pending motion because the vesting of T.’s rights necessarily occurred before the
commencement of any criminal case. We disagree. The fact that the rights of a
victim in a matter to which the amendment applies vest before any corresponding
criminal case is initiated does not address the issue here, which is whether the
amendment should apply retrospectively to a motion that was pending in a charged
case that was initiated before the amendment went into effect. These are two
different topics. The language relied on by the State is ambiguous on the intent
regarding retrospective application of the amendment in these circumstances.
15
Johnson asserts that the self-executing nature of the 2020 constitutional amendment
means that it applies only prospectively and not to his pending case. However, Johnson fails to
explain this assertion. We decline to attempt to develop an argument for Johnson. See Industrial
Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769
N.W.2d 82 (stating “we will not abandon our neutrality to develop arguments”).
17
2019AP664-CR
¶37 Next, subsection (2)(i) of the 2020 constitutional amendment states
that “[u]pon request, [the victim is] to be heard in any proceeding during which a
right of the victim is implicated, including release, plea, sentencing, disposition,
parole, revocation, expungement, or pardon.” See WIS. CONST. art. I, § 9m(2)(i).
This “must be heard” provision has to be understood in light of paragraph (a) of
subsection (4) of the amendment, which establishes the tools for victims to assert
their rights. See id. art. I, § 9m(4). We now repeat subsection (4)(a) for context:
[T]he victim, the victim’s attorney or other lawful
representative, or the attorney for the government upon
request of the victim may assert and seek in any circuit court
or before any other authority of competent jurisdiction,
enforcement of the rights in this section and any other right,
privilege, or protection afforded to the victim by law. The
court or other authority with jurisdiction over the case shall
act promptly on such a request and afford a remedy for the
violation of any right of the victim.
Id. art. I, § 9m(4)(a).
¶38 We agree with the State that those provisions, read together, express
the intent that the 2020 constitutional amendment applies to pending motions in
cases initiated prior to passage of the amendment. The 2020 constitutional
amendment’s delineation of rights of a victim to be heard in proceedings that may
not occur for years after a case is initiated, such as sentencing, revocation, parole,
and expungement hearings, together with a requirement that a circuit court must act
“promptly” on a victim’s assertions of rights afforded to the victim under the
amendment, are antithetical to the proposition that this amendment does not apply
retrospectively to pending motions. Otherwise, for Johnson’s argument to succeed,
we would effectively be required to read the following language into the 2020
constitutional amendment: “This amendment applies only to cases in which the
crime was committed after May 4, 2020.” If that was the intent of the amendment,
18
2019AP664-CR
we would expect to see language such as that which accompanied the
implementation of the TIS-I and TIS-II sentencing schemes now embodied in WIS.
STAT. § 973.01(1) (“[W]henever a court sentences a person to imprisonment in the
Wisconsin state prisons for a felony committed on or after December 31, 1999, or a
misdemeanor committed on or after February 1, 2003, the court shall impose a
bifurcated sentence under this section.”) or the effective date of changes to WIS.
STAT. § 907.02(1) concerning what is commonly known as the application of
Daubert principles to expert witness testimony.16 See 2011 Wis. Act 2, § 45(5)
(“[The statutory amendments] first apply to actions or special proceedings that are
commenced on the effective date of this subsection.”) Such language draws a line
between events before and after a date certain in which different rights or procedures
apply. The fact that similar language is not present in the 2020 constitutional
amendment, together with the language that is present in the amendment, weighs in
favor of concluding that the amendment applies retrospectively to the issue of T.’s
standing to oppose Johnson’s Shiffra-Green motion.
¶39 In addition, and although not argued by any party to this appeal, the
use of the term “parole” in subsection (2)(i) confirms the point. See WIS. CONST.
art. I, § 9m(2)(i). Because of the implementation of TIS-I and TIS-II, the term
“parole” is no longer used for supervision of a convicted criminal after his or her
release from prison. Instead, the term used is “extended supervision.” See WIS.
STAT. §§ 973.01 and 973.014. For that reason, only criminal cases pending as of
the effective date of the amendment, some of which may be concluded in terms of
16
See Seifert v. Balink, 2017 WI 2, ¶¶6-7, 372 Wis. 2d 525, 888 N.W.2d 816 (citing
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)).
19
2019AP664-CR
post-conviction and appeal rights, have “parole” available to the convicted felon.17
As a result, the use of the term “parole” in the 2020 constitutional amendment leads
to the conclusion that there is clear intent that the amendment applies to motions
pending in cases initiated prior to the effective date of the amendment.
¶40 Accordingly, we conclude that the provisions of the 2020
constitutional amendment apply retrospectively to grant T. standing to oppose
Johnson’s pending Shiffra-Green motion.
¶41 Johnson makes arguments to the contrary, which we reject for reasons
that we now explain. First, Johnson argues that, because the effective date of the
2020 constitutional amendment was May 4, 2020, the amendment does not apply to
the issues before this court. However, the date the amendment became “effective”
is related only to a confirmation that the amendment was enacted according to
Wisconsin law. See ¶18, above. Johnson does not explain how or why the “effective
date” of the amendment controls whether there should be retrospective or
prospective application of the amendment in these circumstances.
¶42 Second, Johnson asserts that: “A criminal case that was commenced
prior to the effective date of the recent amendments and of which the pertinent issue
[T.’s standing] was litigated to the circuit court prior to the amendments is a settled
issue based on the effective law at the time of litigation.” However, in making this
wholly conclusory assertion, Johnson does not engage with any analysis of
authorities or the language of the 2020 constitutional amendment. For that reason,
17
An alleged crime could have been committed before the year 2000, and the alleged
perpetrator has not yet been charged, but those would be extremely rare events after twenty years
and do not indicate an intent to make the 2020 constitutional amendment apply prospectively only.
20
2019AP664-CR
we reject this as an argument. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d
633 (Ct. App. 1992) (stating that courts may reject undeveloped arguments).
¶43 Third, Johnson contends that: “The recent amendments do not
constrain the court’s capability to conduct such a [Shiffra-Green] review and the
court must still follow current law regarding the production, review, and disclosure
of such records.” Johnson also notes that he has the right to present a complete
defense in the criminal case, which includes the right to discovery of exculpatory
evidence. See Shiffra, 175 Wis. 2d at 605. From those uncontested premises,
Johnson contends as follows:
A defendant’s constitutional right to due process and
a meaningful opportunity to prepare a complete defense
would be infringed by a victim asserting his or her position
regarding a defense discovery request in addition to
arguments made by the State…. Such action by a victim
would needlessly jeopardize the rights of the defendant and
would limit the right to a complete and meaningful defense.
Johnson’s argument fails because no one, including T. and the State, is arguing that
the standard process to resolve a Shiffra-Green motion will not apply to Johnson’s
pending motion. The sole difference procedurally is that T. would have the right to
be heard on that motion in addition to input from the State and Johnson. Johnson’s
right to present a complete and meaningful defense through the Shiffra-Green
procedure set forth by our courts will not be impaired because of that input from T.
¶44 Finally, Johnson argues that, if the 2020 constitutional amendment
allows T. to address the circuit court regarding the Shiffra-Green motion, the
amendment would permit T. to become a participant “in the prosecution of”
Johnson. He concedes that “[v]ictims have the ability to assert rights provided under
law,” but those rights cannot be asserted “in a manner that would afford him or her
party status to join litigation associated with the prosecution of the defendant.”
21
2019AP664-CR
From that, Johnson asserts: “Shiffra-Green hearings are part of the prosecution and
thus outside the constitutional or statutory rights of nonparty alleged victims.”
¶45 We agree that only a district attorney or a properly appointed special
prosecutor can prosecute a criminal case. WIS. STAT. §§ 978.045 and 978.05(1).
Consistent with this rule, T. disclaims in briefing in this court any intent to be
involved in the prosecution of this matter. Moreover, the 2020 constitutional
amendment does not purport to grant victims the ability to prosecute defendants. As
Johnson concedes, “the recent amendments only provide a constitutionally based
capability for a victim to seek to assert the enforcement of his or her rights
specifically provided under law.”
¶46 Granting T. standing to oppose, and make arguments to the circuit
court in the criminal case supporting his opposition to, a Shiffra-Green motion
concerning his privileged and confidential health care records 18 does not impair
Johnson’s rights because T.’s input to the circuit court on the merits of Johnson’s
motion does not implicate hallmarks of substantive criminal law: (1) T.’s input does
not prove that Johnson is guilty; (2) T.’s input does not create a new crime or change
the elements of the crimes of which Johnson has been charged; or (3) T.’s input does
not increase the sentencing range for those crimes. State v. Lagundoye, 2004 WI
4, ¶¶21-22, 268 Wis. 2d 77, 674 N.W.2d 526 (stating that a “substantive” change in
criminal law is one that “declares what acts are crimes and prescribes the
punishment therefor”; it is one that “change[s] the nature of the crime by altering
what acts were proscribed under the statute.”). Granting T. standing in these
circumstances allows T. only to contest Johnson’s Shiffra-Green motion by
18
As noted, it is undisputed that T. has rights to confidentiality and privilege regarding his
health care records. See WIS. STAT. §§ 146.82(1) and 905.04(2).
22
2019AP664-CR
communicating his arguments to the court directly about why the motion should be
denied or limited in a manner in the discretion of the circuit court.
¶47 In sum, the terms of the 2020 constitutional amendment apply
retrospectively to grant T. standing to oppose Johnson’s pending Shiffra-Green
motion.19
CONCLUSION
¶48 For the foregoing reasons, the order of the circuit court is reversed and
the cause is remanded for further proceedings consistent with this opinion.
By the Court.—Order reversed and cause remanded with directions.
19
Paragraph (4)(b) of the 2020 constitutional amendment establishes that a victim may
obtain appellate review of all adverse decisions under paragraph (4)(a) by filing a petition for
supervisory writ. See WIS. CONST. art. 1, § 9m(4)(b). At the time the petition for leave to appeal
was granted by this court, the 2020 constitutional amendment was not yet in effect, and T. used the
then-proper procedure to request appellate review of this issue. Johnson has not objected to the
method of appellate court review used by T. In this unique situation, with the 2020 constitutional
amendment becoming effective after we granted T.’s petition for leave to appeal, we need not take
up the question of the necessity of a supervisory writ in these circumstances.
23