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SCOW again leaves Shiffra standing—for now

State v. Patrick J. Lynch, 2016 WI 66, 7/13/16, affirming (for all practical purposes) a published court of appeals decision, 2015 WI App 2, 359 Wis. 2d 482, 859 N.W.2d 125; case activity (including briefs)

A very divided supreme court once again declines to overrule 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, and leaves the current standard and remedy intact—or, as the mandate puts it, “the law remains as the court of appeals has articulated it.” But four separate writings totaling 135 pages make it clear Shiffra in its current form will certainly be subject to challenge again.

The court of appeals held Lynch met the Shiffra/Green standard for an in camera review of the treatment records of A.M., who alleged Lynch had sexually assaulted her 20 years ago. Because A.M. refused to release her records for review, the court affirmed that the proper remedy under Shiffra was exclusion of A.M.’s testimony at trial. Having failed to get the supreme court to overrule Shiffra two terms ago, in State v. Johnson, 2013 WI 59, 348 Wis. 2d 450, 832 N.W.2d 609, on motions for reconsideration, 2014 WI 16, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam), the state tried again in this case. (For more on Johnson, see here).

The state comes up short this time, too, though it gets within a hair’s breadth. Five justices would reverse the decision of the court of appeals in whole or in part, but no more than three justices can agree on the same rationale or result. Consequently, the court of appeals decision remains the law of the case. Johnson, 353 Wis. 2d 119, ¶2. Here’s the breakdown:

  • Three justices (Gableman, Roggensack, and R.G. Bradley) would overrule Shiffra and Green.
  • Two justices (Abrahamson and A.W. Bradley) would not overrule Shiffra and Green but, rather than excluding the testimony of a complainant who refuses to consent to release of records, would modify Shiffra to allow circuit courts to order release of confidential records under § 146.82(2)(a)4.
  • One justice (Prosser) would likewise not overrule Shiffra and Green, and would consider additional remedies, but would not permit circuit courts to compel release of the complainant’s privileged records under § 146.82(2)(a)4.
  • One justice (Ziegler) would not overturn Shiffra and Green and would maintain Shiffra‘s single remedy of exclusion of the complainant’s testimony.

Given the three votes to overrule, and the fact that one of the votes to maintain Shiffra/Green (Prosser) is about to retire and be replaced, it’s safe to say this won’t be the end of the state’s challenge to Shiffra. And the state will certainly be buoyed by the 57-page “lead opinion” written by Gableman arguing why he thinks Shiffra is an improper expansion of Pennsylvania v. Ritchie, 480 U.S. 39 (1987), and has no other constitutional basis; asserting that any right to access confidential records has to be balanced against the complainant’s interests; and concluding that the legislature, not the courts, should be creating the necessary process for access to records. (¶¶1-73). By contrast, the justices voting to maintain Shiffra rest heavily on stare decisis and the important due process, confrontation, and compulsory process interests served by its rule. (¶¶93-108, 157-76, 194-216). Note that the barbs traded between the justices show some unusual fissures. E.g., the “lead opinion” criticizing the “dissents” of Prosser and Ziegler for essentially “blindly adher[ing] to poorly reasoned cases” (¶39 n.17); and Ziegler’s “dissent” criticizing the “lead opinion” for “wander[ing] far beyond the confines of the briefing and argument in this case, discarding the Shiffra-Green framework despite incomplete knowledge of the many applicable constitutional considerations” (¶230) and commenting that it “ring[s] hollow” to say, as the “lead opinion” does (¶¶67-72), that basic criminal trial rights will protect defendants without the need for Shiffra. (¶200 n.4)

A note on the scare quotes in referring to the various writings: As Abrahamson’s “dissent” points out, the “lead opinion” is mislabeled, for it doesn’t represent the views of the majority—that is, the four justices who agree Shiffra should stand; in fact, because it would overrule Shiffra, the “lead opinion” disagrees with the mandate of affirmance of the court of appeals and should be labeled a dissent. (¶¶123-49). Whether this is a step into the Twilight Zone, as Abrahamson says (¶¶124, 127), or whether that characterization is “defamatory,” as Roggensack shoots back (¶76), is a matter we submit for your consideration.

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