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SCOW: Precedent? What precedent? ¯\_(ヅ)_/¯

State v. Anthony James Jendusa, 2018AP2357-CRLV, review of a decision of the court of appeals denying the state’s petition for leave to appeal; case activity

Before turning to the issues presented, we’ll start with an observation about how this case might seem to affect appellate litigation in all kinds of cases, civil and criminal.

As noted above, the state filed a petition to review the court of appeals’ order denying the state’s petition for a permissive appeal. The court has repeatedly said it will not review a court of appeals’ decision to deny a permissive appeal. Leavitt v. Beverly Enterprises, Inc., 2010 WI 71, ¶44, 326 Wis. 2d 421, 784 N.W.2d 683; In re: J.S.R., 111 Wis. 2d 261, 263, 330 N.W.2d 217 (1983)(per curiam); Heaton v. Independent Mortuary Corp., 97 Wis. 2d 379, 397, 294 N.W.2d 15 (1980); State v. Jenich, 94 Wis. 2d 74, 77 & n.2, 299 N.W.2d 115 (1980). While clever lawyers will argue this grant of review effectively overrules the court’s long-standing rule, average litigants shouldn’t expect the supreme court to routinely grant review of permissive appeal denials. This grant doesn’t so much overrule the past cases as ignore them, providing another entry in the annals of the special rules applicable to the state.

On, then, to the issues presented.

Jendusa is fighting the state’s petition to commit him under ch. 980. As part of his defense, he requested the raw data from a study the Department of Corrections had conducted to ascertain the recidivism rate of Wisconsin sex offenders—data that was used for and cited in a doctoral dissertation. He sought, and received, permission from DOC’s own Research Review Committee to review the data, but after a couple of years of evading various questions about what DOC’s analysis of the data showed, denying knowledge that a recidivism rate had been calculated, and failing to comply with subpoenas to bring relevant documents with him to court and even deleting pertinent emails, a DOC employee testified that the preliminary estimate of recidivism showed only 7% of DOC sex offenders were convicted of new sex offense. Finding the DOC employee had serious credibility problems, the circuit court ordered the database (sans personal identifying information) turned over to Jendusa so his experts could analyze it.

The state argued in the circuit court and in its petition for leave to appeal that the circuit court had no authority to order DOC to disclose this data to the defense under the authority Jendusa relied on from ch. 980 or under Brady v. Maryland, 373 U.S. 83 (1963). It also claims release of the information might violate either Wisconsin or federal law regarding patient privacy. Taking all the bait the state threw at it, the court lists the issues presented as follows:

  1. Did the Court of Appeals erroneously exercise its discretion in denying the State’s petition for leave to appeal because the order subjects DOC and the researchers to substantial and irreparable injury and raises substantial issues of general importance in the administration of justice, because the circuit court had no authority – pursuant to Wis. Stat. § 980.036(2)(h), § 980.036(2)(j), § 980.036(5), or Brady v. Maryland – to order DOC to disclose this data to the defense for use in Jendusa’s sexually-violent person commitment trial?
  2. Does release of the information in the database sought by the respondent violate either Wisconsin or federal law, see e.g., Wis. Stat. § 51.30; Wis. Stat. §§ 146.8183; Wis. Admin. Code ch. DHS 92; 42 C.F.R. ch. 1(A)2, 2a; 42 C.F.R. Part 2; 45 C.F.R. Subt. A, Subch. A., pt. 46 (protection of human subjects); 45 C.F.R. Subt. A, Subch. C, pt. 164 (HIPPA)?
  3. Does an entity like the Department of Corrections fall under the umbrella of “the state” for the purposes of the Wis. Stat. Ch. 980 discovery statutes?
  4. Does the circuit court have authority to order a non-investigative agency to provide a defendant with data that does not meet any of the discovery provisions in Wis. Stat. Ch. 980?
  5. Does Brady v. Maryland, 373 U.S. 83 (1963), impose any duty on a prosecutor in sexually violent person commitment trials?

While most obviously relevant to the ch. 980 litigation, the decision in this case will be of interest to criminal law practitioners generally because release (or suppression, as the state seeks) of this data could also affect assessments of risk at sentencing in sex offense cases.

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