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Wisconsin Supreme Court declines to overrule State v. Shiffra, but divides on remedy “in this case”

State v. Samuel Curtis Johnson, III, 2013 WI 59 (per curiam), affirming, as modified, an unpublished court of appeals opinion; reconsideration granted, 2014 WI 16 (per curiam); Justices Prosser and Gableman not participating; case activity

(Note: On July 22, 2013, both Johnson and the state filed motions for reconsideration of the court’s original decision; the motions were decided on March 26, 2014, and this post has been UPDATED below to explain the court’s decision on the motions.)

In this per curiam decision, a majority of the court rejects the state’s request to overrule State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). But the court divides over the remedy for the defendant in this case, depriving him of the benefit of Shiffra. (Note: As explained in the UPDATE section below, the court modified the mandate on reconsideration.)

As explained in our prior post, Johnson was charged with sexual assault of his stepdaughter, T.S., and sought in camera inspection of her counseling records under Shiffra. Applying the test established in Shiffra and modified by State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, the trial court held Johnson provided a sufficient factual basis to get an in camera review of the records to determine whether they contained information material to guilt or innocence.

T.S. declined to consent to the release of the records, as she has the right to do as holder of the privilege protecting the records. Shiffra held that when the privilege holder declines to release the records for review, the remedy is suppression of her testimony. 175 Wis. 2d at 612. But the trial court fashioned a different remedy: T.S. could testify, but the jury would be told she had been ordered to release her records, had refused to do so, and therefore the records presumably would have been helpful to the defense. (Court of Appeals slip opinion ¶1). The court of appeals agreed that Johnson met the Shiffra-Green standard and reversed the trial court’s remedy, holding suppression of T.S.’s testimony was the only remedy available under Shiffra.

The supreme court accepted review to answer three questions. Its opinion resolves two of the questions and divides four different ways on the third question. Here are the questions and the court’s answers:

1.  Whether Shiffra should be overruled because, as the state argued, its holding rests on an erroneous premise that Pennsylvania v. Ritchie, 480 U.S. 39 (1987), mandates pretrial in camera review of privately-held, privileged records? Four of the five justices participating conclude Shiffra should not be overruled, with Justice Roggensack casting the sole vote to overrule. (¶2).

2.  If Shiffra is not overruled, did Johnson meet the Shiffra-Green standard? Three of the five justices agree he did; Justices Roggensack and Ziegler conclude he did not. (¶3).

3.  If Shiffra is not overruled, and Johnson has met the standard, may the circuit court require production of T.S.’s privately-held, privileged mental health records despite her refusal to consent to release? A divided court gives four different answers, with no single answer garnering a majority (¶4):

  • Chief Justice Abrahmson and Justice Bradley conclude the circuit court may order production of the records for an in camera review over the refusal of T.S., which would make it unnecessary to suppress her testimony, though they also would affirm the circuit court’s order with the exception of the instruction that the jury presume the records would be helpful to the defense, which violates § 905.13.
  • Justice Crooks concludes the circuit court cannot order production of the records without T.S.’s  consent, and that she may not testify unless she consents to release of the records.
  • Justice Ziegler also concludes the circuit court cannot order production of the records and that T.S. may testify without agreeing to produce the records, because Johnson didn’t meet his burden for getting in camera review.
  • Finally, Justice Roggensack, consistent with her view that Shiffra should be overruled, also concludes the circuit court cannot order production of privately held records and therefore T.S. may testify.

Because a majority concludes (although for different reasons) that the circuit court cannot require production of the records, and a different majority concludes (again for different reasons) that T.S. can testify despite her refusal to release her records, the case is remanded to the circuit court for further proceedings, and on remand the circuit court may not require production of the privately-held, privileged mental health records for in camera review, but T.S. may be called to testify. (¶¶5-9). (Note: Again, as explained in the UPDATE section below, the court modified the mandate on reconsideration.)

So Shiffra is still the law and Johnson meets the Shiffra-Green standard for getting in camera review. Yet at Johnson’s still-to-be-held trial, T.S. may testify despite her refusal to release her records. Does that mean the remedy has also changed for other defendants who satisfy the Shiffra-Green standard when the privilege holder refuses to release the records? Prosecutors may want to make that argument, but the answer to that argument is that the remedy hasn’t changed.

A majority of the court voted to uphold Shiffra, so the right and remedy created by it stand; thus, if you meet the Shiffra-Green standard, the privilege holder must decide whether to release the relevant records, and if he or she refuses consent, Shiffra requires the suppression of the privilege holder’s testimony, as the court of appeals in this case appropriately held. As to the court’s divergent conclusions about what should happen “in this case” (¶¶4, 6, 7), they add up only to a mandate for Johnson. The lack of a majority on any one of the various conclusions means none of them has any precedential value because “a majority of the participating judges must have agreed on a particular point for it to be considered the opinion of the court.” State v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249 (1995), citing State v. Dowe, 120 Wis. 2d 192, 194, 352 N.W.2d 660 (1984) (where court split 3-3 on whether to overrule an earlier case, the case was not overruled and remained precedential). Cf. State v. Grady, 2007 WI 81, ¶¶19-28, 302 Wis. 2d 80, 734 N.W.2d 364 (concluding prior cases did not create binding precedent on an issue because no majority opinion adopted a holding on that issue). For additional applications of this rule, see the line of civil cases on statutes of limitation and repose in civil actions, in particular the treatment of the three opinions constituting the majority result in Estate of Makos v. Wisconsin Masons Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997). In a unanimous opinion released less than two weeks after Makos, the court said that “the only ‘majority’ holding in that case is the mandate. Of the four ‘majority’ justices, three separate opinions give three distinct reasons for the result. Therefore, none of the opinions in that case has any precedential value.” Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 334 n.11, 565 N.W.2d 94 (1997). See also Ives v. Coopertools, 208 Wis. 2d 55, 58, 559 N.W.2d 571 (1997) (per curiam); Tomczak v. Bailey, 218 Wis. 2d 245, 280, 578 N.W.2d 166 (1998) (Geske, J., concurring); Aicher v. WI Patients Compensation Fund, 2000 WI 98, ¶40, 237 Wis. 2d 99, 613 N.W.2d 849 (concluding Makos has no precedential weight, and overruling it).

Of course, the lack of a majority approach in this case on what should happen when the privilege holder does not consent to release of records throws a cloud over Shiffra and means the state will continue to push for change. This decision will certainly not be the last word on the issue.

What about Johnson, who has to go to trial without an in camera review even though he made a sufficient Shiffra-Green showing? The court’s mandate seemingly violates Article I, § 9, of the state constitution (which creates no rights itself but assures remedies for existing rights, Aicher, 237 Wis. 2d 99, ¶¶41-44) by depriving him of a remedy under Shiffra. The justices (Abrahamson and Bradley) who concluded that the trial court has the authority to order release of confidential records for purposes of doing an in camera review agreed with Judge Brown’s dissent in the court of appeals (Court of Appeals slip opinion ¶28), which cogently noted that ordering the records to be turned over to the circuit court protects the defendant’s interest. After all, it is conducting the in camera review despite T.S.’s refusal to consent to release of her records that obviates the need to exclude T.S. from testifying because that review may produce relevant evidence for Johnson. Logically, then, any ruling allowing T.S. to testify must be premised on a concurrent ruling that the circuit court can and will order production of her records despite her refusal. As it stands, then, the mandate here–that the circuit court cannot order production of the records but T.S. can testify–is both inconsistent with Shiffra and profoundly unfair for Johnson.

UPDATE (3/26/14): Both parties filed motions for reconsideration, and the court has now issued its decision on those motions. Three of the five justices participating in the case agree that the court’s previous per curiam decision represented a “deadlock” and not “minority vote pooling.” (¶1). Because the court was deadlocked, the court of appeals’ decision is affirmed: “To be clear, as a court of five justices, we do not herein overturn or modify any precedent. Very simply stated, the court of appeals is affirmed, because no three justices 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.” (¶3). Thus, contrary to the previous per curiam decision, the court of appeals’ mandate remains intact, and because Johnson has met the standard for getting an in camera review of T.S.’s records, she may not testify if she does not consent to the release of those records. (¶¶11, 13).

Justice Bradley, joined by Chief Justice Abrahamson, dissents on the ground that the court is not deadlocked, that a majority agrees–albeit for different reasons–that T.S. can testify despite her refusal to release her records, and therefore the mandate in the court’s previous per curiam should stand. (¶¶15-29).

The three-justice majority and the dissent disagree as to whether, once the defendant has meet the burden for getting an in camera review, the production of records can be separated from the testimony of the complainant. The majority views Shiffra as holding they can’t be separated, so that a complaint’s refusal to release records means the complainant can’t testify (¶¶5, 10); the dissent disagrees, and views Shiffra as having left open the possibility of other remedies (¶¶17-21). For now, the majority view–and the Shiffra we’ve been functioning under for many years (¶12)–prevails. But as we noted in our post on the previous per curiam, the state will continue to push to modify Shiffra‘s remedy, and this decision will not be the last word on the issue.

The quarreling over whether the first per curiam involved a “deadlock” or “minority vote pooling” will interest only the most ardent aficionado of appellate law esoterica. For those few of you out there, it must be said the three-justice majority’s citation to other deadlocked cases (¶2) is inapt, for those cases involve 3-3 splits; as the dissent points out (¶16), the majority fails to explain how an odd number of justices can be deadlocked, at least in that manner. That said, the dissent’s reliance on State v. Gustafson, 121 Wis. 2d 459, 359 N.W.2d 920 (1985) (per curiam), and Ives v. Coopertools, 208 Wis. 2d 55, 58, 559 N.W.2d 571 (1997) (per curiam), also seems inapt. Ives involved unanimous agreement that the court of appeals was wrong to reverse the circuit court’s judgment, so even though the court split 3-3 on why the court of appeals was wrong and what the result should be, there was a ready remedy: Reinstate the circuit court judgment. In Gustafson, there was a 5-1 split on one claim of error and a 4-3 split on another, resulting in a majority of four justices finding error but a lack of agreement about what the error was and, to the majority in that case, a consequent inability to give clear guidance to the circuit court about how to fix the error.

Here, the court doesn’t have the easy remedy of reinstating, intact, the entire circuit court remedy, for that included instructing the jury T.S. had refused to release her records (obviously an attempt to ameliorate the resulting harm to Johnson) and all five justices agree that the circuit court was wrong to order that. (¶¶1 n.1, 30-31). Nor will the circuit court lack direction on remand, for the supreme court’s affirmance of the court of appeals means the trial court simply has to follow the long-standing rule of Shiffra. Indeed, the ability to give guidance to the circuit court on remand was a point made in favor of vote-pooling by then-Justice Abrahamson’s dissent in Gustafson, 121 Wis. 2d at 465. That dissent also made the point that considerations of due process enter into the picture, 121 Wis. 2d at 466, and that “in a criminal case in which a liberty interest in involved and the government is using its power against the individual, greater care must be taken to safeguard the individual’s rights[,]” 121 Wis. 2d at 465. Those very considerations make the result ordered on reconsideration the right one.

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