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Wisconsin Supreme Court holds counsel in merit appeal may refer to PSI without asking permission from any court

In the Matter of State v. Michael Buchanan: State ex rel. Office of State Public Defender v. Wis. Court of Appeals, District IV, 2013 WI 31, on review of petition for supervisory writ; case activity

In an important decision for all lawyers who handle criminal cases in the state appellate courts, the supreme court affirms that counsel for the defendant and the state do not need permission from a court to use, cite to, or quote from a PSI in appellate briefs:

¶19  Pursuant to our superintending and administrative authority, we conclude that in a merit appeal, parties who are entitled “to have and keep a copy” of a PSI pursuant to Wis. Stat. § 972.15(4m) need not ask any court’s permission to reference a PSI in an appellate brief. Parties may reference information from the PSI that does not reveal confidential information and that is relevant to the appeal. Extreme caution should be undertaken when referencing sensitive information.[4]

[4] A PSI should be quoted as sparingly as possible, and counsel must exercise sound discretion to avoid compromising sensitive information.  On occasion, appellate counsel may need guidance from the court of appeals.

The issue in this case arose after the lawyer for a defendant in a merit appeal raising a sentencing issue asked for, and received, permission from the court of appeals to cite the PSI in his brief. (¶4). The state asked, too, saying that was its practice since State v. Parent, 2006 WI 132, 298 Wis. 2d 63, 725 N.W.2d 915, which held that a defendant in a no-merit appeal is entitled to view the PSI, subject to the circuit court’s discretion to redact identifying or confidential information. (¶5). The reference to Parent apparently caused the court of appeals to conclude its earlier order was wrong, so it sealed the defendant’s brief and directed the parties to move the circuit court for permission to “access, discuss, cite to, or quote from the PSI,” saying that “Parent makes clear that the circuit court, and not this court, is the proper tribunal to preside over motions requesting access to and disclosure of the contents of PSI reports.” (¶6).

The supreme court now holds that because the lawyers for the defendant and the state in a merit appeal are entitled “to have and to keep a copy” of the PSI under Wis. Stat. § 972.15(4m), they likewise have the authority to use, cite to, and quote from the PSI in the appeal. (¶¶22-27). This conclusion is consistent with Parent because that case is concerned with access to the PSI, not use of it, and moreover is limited to the issue of access by the defendant in a no-merit appeal who, unlike counsel in a merit appeal, does not get to have and keep a copy under § 972.15. (¶¶29-34). Finally, the court of appeals read the confidentiality requirements in § 972.15(4) and (4m) to mean the parties must seek permission to use the PSI in a brief, but the supreme court rejects that construction:

¶39  We agree with the SPD and the State that the confidentiality requirement of Wis. Stat. § 972.15 requires compliance with Wis. Stat. § (Rule) 809.81(8) (“Every notice of appeal or other document that is filed in the court and that is required by law to be confidential shall refer to individuals only by their first name and the first initial of their last name.”).  See also Wis. Stat. § (Rule) 809.19(1)(g) and (2) (requiring reference to individuals by first name and last initial in appellate briefs when record is confidential).  Parties should be mindful that a PSI may also contain information that must be kept confidential for other reasons, for example medical information, see Wis. Stat. § 146.82 (“All patient health care records shall remain confidential”), information from child welfare and termination of parental rights (TPR) proceedings, see Wis. Stat. §§ 48.78, 48.396(2)(dr), and information from juvenile delinquency proceedings, see Wis. Stat.§§ 938.78, 938.396(2g)(dr).  These examples are by no means exhaustive regarding the treatment or forms of confidential information that may be contained in a PSI.  In addition, because of the sensitive nature of information contained in a PSI, counsel should be prudent when using any information from a PSI regardless of whether they are statutorily-required to so measure their actions.

This decision very helpfully affirms what has been standard practice for years, and avoids mandating a new procedure that would have been cumbersome and time consuming and could have allowed judges to limit the ability to cite to the parts of the record that supported claims of sentencing error. That said, there are a couple of points to note.

First, the court is concerned that PSIs can contain sensitive information and that there is a potential for widespread dissemination of information now that briefs are electronically filed; accordingly, it takes pains to urge lawyers to be “abundantly” and “extreme[ly]” cautious in citing sensitive information, to exercise “sound discretion,” and to quote the PSI “sparingly.” (¶¶3, 19 n.4, 43). And, citing the two known instances (one involving a judge, the other a prosecutor) when citation to the PSI was deemed to be over the line, the court says:

¶42  To be clear, our decision does not grant parties unfettered discretion to reference any and all portions of a PSI; the parties may reference information from a PSI only if it is relevant to an issue on appeal.  See State v. Comstock, 168 Wis. 2d 915, 923, 485 N.W.2d 354 (1992) (“[T]he dissent admits that it recites numerous facts drawn from the presentence investigation report.  We disapprove of this practice.”) (citation omitted); State v. McCallum, 208 Wis. 2d 463, 480 n.3, 561 N.W.2d 707 (1997) (“McCallum’s motion to strike references to the defendant’s presentence investigation report from the State’s brief is granted.” (citing Comstock, 168 Wis. 2d at 923-25)).

The court also suggests counsel who are unsure whether a brief’s use of information from the PSI complies with confidentiality rules can “ask the court of appeals for guidance” or file the brief under seal and let the court of appeals decide compliance. (It would be better to try seeking advice from a colleague who does appellate criminal defense before asking the court.) Also, opposing counsel can move to strike inappropriate references in a brief, as happened in McCallum. (¶43).

Finally, the dissent concludes that because § 972.15 says the PSI is confidential, it can’t be cited or quoted unless the information is already public–e.g., because the judge discussed it at sentencing. Reference to anything else would require permission from the judge (circuit or court of appeals, depending where the record is). (¶¶62-72). Both the majority (¶43 n.13) and dissent (¶67 n.6) note this approach is consistent with legislation proposed by the Judicial Council. Obviously, if the legislature amends § 972.15, it may well change the rules for referring to the PSI in appellate briefs and other filings.

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