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Defense win! Circuit court must explain rationale for granting a protective order without an evidentiary hearing

State v. William H. Craig, 2017AP651-CR, 4/17/18, District 3 (not recommended for publication); case activity (including briefs)

Criminal defendants have a broad right to pretrial discovery under §971.23(1), but that right is tempered by  §971.23(6), which authorizes the circuit court to enter protective orders for good cause. The court is not required to hold an evidentiary hearing before granting a motion for protective order. But if it denies a hearing, it must explain its rationale. The circuit court did not do that here, so the court of appeals reversed and remanded this case for further proceedings.

The court of appeals noted that there may be valid reasons for a circuit court to refuse to hold a hearing, but the record must show that the circuit court in fact exercised its discretion:

¶13 The State construes Craig’s argument on appeal as advocating that an evidentiary hearing is always required when the State moves for a protective order under WIS. STAT. § 971.23(6). To the extent Craig actually intends to make that argument, we reject it. Nothing in the text of § 971.23(6) indicates a circuit court is required to hold a hearing before issuing a protective order under that subsection. Moreover, as our supreme court has previously noted, a court “does not have to hold an evidentiary hearing on a motion just because a party asks for one. An evidentiary hearing is necessary only if the party requesting the hearing raises a significant, disputed factual issue.” State v. Velez, 224 Wis. 2d 1, 12, 589 N.W.2d 9 (1999) (quoting United States v. Sophie, 900 F.2d 1064, 1070 (7th Cir. 1990)).

¶14 We therefore conclude a circuit court has discretion to decide whether to hold a hearing—evidentiary or otherwise—before ruling on a motion for a protective order under WIS. STAT. § 971.23(6). There may be circumstances in which the court could appropriately decide not to hold a hearing—for instance, where the nonmoving party does not object to the protective order; where there is some emergency requiring prompt action by the court; or where the parties’ submissions conclusively demonstrate that, based on the relevant law and the undisputed facts, good cause exists to issue a protective order and the order’s issuance will not hamper the defendant’s ability to mount an adequate defense. Conversely, the court should hold a hearing when either the facts or the law are disputed, unless the court determines, in its discretion, that other factors override the need for a hearing.

Appeals arguing that the circuit court failed to explain its exercise of discretion are usually doomed by the principle that the court of appeals may search the record for evidence to support the circuit court’s decision. (See possibly every appeal arguing that the circuit court violated Gallion). That principle did not save the circuit court here.  The court of appeals’ holding on this point could be useful in future appeals challenging discretionary decisions.

¶16 Here, there is no evidence in the record that the circuit court exercised discretion in granting the State’s motion for a protective order over Craig’s objection, without first holding any kind of hearing. The court merely signed the State’s proposed order (and later a second, identical order) without providing any oral or written explanation for its decision to do so. The court did not make an express finding that the State had established good cause for issuance of the protective order, nor did the court address Martinez’s concern, previously relayed in his motion to compel discovery, that the order’s terms conflicted with his ethical obligations as an attorney. Nothing in the record indicates that the court considered the relevant facts, applied the proper standard of law, or used a demonstrated rational process when deciding to sign the State’s proposed order. See Bowser, 321 Wis. 2d 221, ¶9.

¶17 When a circuit court fails to explain its reasoning for a discretionary ruling, we may search the record to determine whether it supports the court’s decision. Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737. However, we are not required to do so, see, e.g., State v. Gary M.B., 2003 WI App 72, ¶27, 261 Wis. 2d 811, 661 N.W.2d 435, and we decline to do so here. We have previously refused to search the record for reasons to sustain a circuit court’s discretionary decision in circumstances where the record was insufficiently developed to permit us to determine whether the court’s decision was a proper exercise of discretion. See, e.g., Bernier v. Bernier, 2006 WI App 2, ¶¶25-31, 288 Wis. 2d 743, 709 N.W.2d 453; Gary M.B., 261 Wis. 2d 811, ¶27. We have also declined to search the record when, because of the circuit court’s total failure to explain its reasoning, doing so would have been tantamount to exercising discretion in the first instance, rather than reviewing the circuit court’s discretionary decision. See Vlies v. Brookman, 2005 WI App 158, ¶33, 285 Wis. 2d 411, 701 N.W.2d 642; see also Priske v. General Motors Corp., 89 Wis. 2d 642, 663-64, 279 N.W.2d 227 (1979).

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{ 3 comments… add one }
  • John T. Wasielewski May 10, 2018, 10:22 am

    An interesting point not directly mentioned in this review is that this was an interlocutory appeal of a non-final order. I had always understood there was an unwritten rule that such appeals are accepted in criminal/juvenile cases only on the issues of juvenile waiver into adult court or double jeopardy. Up until now, I’ve been unable to cite any cases defying this unwritten rule. Perhaps this case broadens the scope of what the court of appeals might review on an interlocutory basis.
    Of course, although new ground might have broken, this case will, alas, apparently not be published.

  • Jeremiah W Meyer-O'Day May 11, 2018, 10:23 pm

    State v. Joshua Luther, decided last week, was interlocutory

  • Bernardo Cueto May 19, 2018, 11:27 am

    This was an appeal of what some prosecutor offices do routinely, which is to ask the defense to hide sensitive discovery from the defendant, before agreeing to release it. I made a challenge to one of these “routine” stipulations recently in Eau Claire and I think we have to keep fighting these. The law is clear on what each side’s obligations are. If the State wants to seek special treatment, then they need to request it from the court every single time and the court has to make a finding every single time. In this case it was the videotaped interview of the complainant.

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