On Point

7th circuit court of appeals decision; habeas review of: Wis court of appeals decision, 03AP3252

Habeas – Supplement Record

… Although we generally decline to supplement the record on appeal with materials not before the district court, we have not applied this position categorically. See, e.g., Ruvalcaba v. Chandler, 416 F.3d 555, 562 n.2 (7th Cir. 2005) (in habeas case, supplementing the records with certain state court documents and otherwise accepting the parties’ undisputed representations about the content of unprovided records); accord Thompson v. Bell, 373 F.3d 688, 690-91 (6th Cir. 2004) (in habeas case, acknowledging that “courts of appeals have the inherent equitable power to supplement the record on appeal, where the interests of justice require” and collecting cases), overruled on other grounds, 545 U.S. 794 (2005). “In the interest of completion,” Ruvalcaba, 416 F.3d at 562 n.2, we ordered sua sponte the parties to supplement the record in this case with the record before the state appellate court. The parties have done so, and we have conducted a full review of Mr. Brown’s commitment record.

Habeas – Procedural Bar – “Cause and Prejudice”

Mr. Brown first asserts that appellate counsel was ineffective for failure to raise his due process claims on direct appeal and that counsel’s performance amounts to cause for any default. When preserved, meritorious claims of ineffective assistance can excuse default. Murray v. Carrier, 477 U.S. 478, 488-89 (1986). A constitutional right to effective assistance must be the predicate to any such claim. See Coleman v. Thompson, 501 U.S. 722, 752 (1991). Mr. Brown provides no authority establishing a constitutional right to appellate counsel to challenge a civil commitment. Where, as here, the right to counsel is a creation of state statute only, see Wis. Stat. § 980.03(2)(a), it follows that denial of that right does not establish the necessary cause to excuse the default of any underlying claims. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (per curiam) (holding that, where there is no constitutional right to counsel, there can be no deprivation of effective assistance); Coleman, 501 U.S. at 752-54 (rejecting a claim that procedural default is excused by “ineffective assistance” when the proceedings in question did not entail a constitutional right to counsel).⁷

As footnote 7 makes clear, the court essentially holds that there is no constitutional right to assistance of counsel on appeal from an SVP commitment. From that premise, the following implications flow: because there is no right to counsel in this context, a claim of ineffective assistance of counsel isn’t supported; and, because a cause-and-prejudice analysis generally requires a preserved state claim of ineffective assistance, such an analysis isn’t supported either. Note, however, that Wisconsin itself takes a different approach, namely, “The guarantee of counsel on appeals as of right includes the guarantee of effective assistance of counsel.”  State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 256-59, 548 N.W.2d 45 (1996), quoting State ex rel. Flores v. State, 183 Wis. 2d 587, 605, 516 N.W.2d 362 (1994).

The court separately notes a distinct ground for excusing default: “actual innocence,” or fundamental miscarriage of justice. However, the “correct application of the actual innocence exception to civil commitment cases is a difficult one,” without guidance form the Supreme Court or other circuits, and the court leaves resolution for another day.

Habeas – SVP Diagnosis
SVP commitment is upheld against claims that  diagnosis of paraphilia NOS nonconsent lacks scientific foundation and diagnosis of antisocial personality disorder (APD) is too broad.

The court largely follows its recent decision in McGee v. Bartow, 593 F.3d 556 (7th Cir. 2010), which concluded that commitment based on diagnosis of paraphilia NOS nonconsent didn’t violate due process. The APD discussion is more involved. The court rejects the idea that APD is an invalid basis for commitment, despite language in Supreme Court caselaw strongly suggesting that it is. Same, relative to acknowledged professional disagreement about the propriety of using APD to support commitment:

… As we noted inMcGee and already have repeated here, however, the existence of a professional debate about a diagnosis or its use in the civil commitment context does not signify its insufficiency for due process purposes, particularly where, as here, that debate has been evaluated by the factfinder. McGee, 593 F.3d at 580-81. Mr. Brown introduced his own expert who testified that, in her professional view, APD did not satisfy the Wisconsin statutory requirement of a “mental disorder” that could serve as the predicate for civil commitment. …

… That is, it is not the diagnosis alone, in the abstract, that is the focus in assessing the constitutionality of a civil commitment. Instead, we are concerned with how the mental disorder manifests itself in the individual, particularly as regards its effect on his ability to control his behavior. … Although the statistics that indicate that APD is a common condition in prison certainly warrant attention in light of Crane’s admonition, those figures do not demonstrate that the diagnosis never can bear the weight of a civil commitment consistent with due process.

The court cautions that it is not holding a finding of APD alone suffices. McGee also was diagnosed with paraphilia NOS consent. Finally in relation to APD, the court holds that the unavailability of this diagnosis as an NGI defense doesn’t impair its viability as support for SVP commitment, “in view of the different purposes of the two types of proceedings.”

Habeas – Daubert
The test for admissibility of evidence in federal trials, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), isn’t required of state trial as a matter of due process.

State v. James W. Smith, 2010 WI 16, affirming 2009 WI App 16; for Smith: Shelley M. Fite, SPD, Madison Appellate

The § 301.45 reporting requirement applicable to any violation of false imprisonment of a minor not the defendant’s child is rationally related to a legitimate government interest in protecting the public, particularly children, ¶¶27-36.

Keep in mind that Smith challenged the statute as applied to him. The majority pays lip service to this notion, then it’s off to the races about proof problems if the abductor’s intent to sexually assault is thwarted. Well, yes. But what, exactly has that to do with Smith? The dissent admirably distills the facts:

¶41      When James Smith was 17 years old, he was convicted of falsely imprisoning another 17-year-old boy for the purpose of collecting a drug debt. Smith, the State, the circuit court, the court of appeals, and the majority all agree that “there is no allegation that the false imprisonment entailed anything sexual.” Majority op., ¶3. Nevertheless, based on this conviction, the majority concludes that there is a rational basis for making Smith register as a sex offender.

As the dissent goes on to show, the majority has just made a hash out of as-applied analysis. No point repeating it. (An aside. The majority punches up boilerplate from an anti-judicial activism program, ¶39: “In reality, our proper judicial role is one of restraint and deference.  Flynn v. DOA, 216Wis. 2d 521, 529, 576 N.W.2d 245 (1998) (‘Our form of government provides for one legislature, not two.’).” Yes, well, but not one legislature and a rubber stamp. If registering James Smith as a sex offender bears some rational relationship to protecting the public in some way, shape or form from sex offenses, then it’s hard to imagine what offender wouldn’t. So far as the opinion demonstrates, anyway.) The net result is that if you don’t have a 301.45 case on your docket, it’s probably just a matter of time. Don’t think, though, that Wisconsin is way out in front of this curve: “Georgia’s Supreme Court is upholding the government’s right to put non-sex offenders on the state’s sex-offender registry, highlighting a little-noticed (but growing) nationwide practice.” The Georgia decision, not cited in Smith, was released 4 days earlier (Rainer v. State, GA SCt No. S09A1900), and may be found here.

Wisconsin supreme court decision; below: certification; for Wood: Kristin E. Lehker; for amicus, Disability Rights Watch: Kristin Kerschensteiner; Supp. App. Br.; Supp. Resp.; Supp. Reply

¶13      A party may challenge a law or government action as being unconstitutional on its face.  Under such a challenge, the challenger must show that the law cannot be enforced “under any circumstances.” See Olson v. Town of Cottage Grove, 2008 WI 51, ¶44 n.9, 309 Wis. 2d 365, 749 N.W.2d 211 (explaining differences between facial and as-applied challenges). If a challenger succeeds in a facial attack on a law, the law is void “from its beginning to the end.” State ex rel. Comm’rs of Pub. Lands v. Anderson, 56 Wis. 2d 666, 672, 203 N.W.2d 84 (1973) (Anderson).  In contrast, in an as-applied challenge, we assess the merits of the challenge by considering the facts of the particular case in front of us, “not hypothetical facts in other situations.” State v. Hamdan, 2003 WI 113, ¶43, 264Wis. 2d 433, 665 N.W.2d 785. Under such a challenge, the challenger must show that his or her constitutional rights were actually violated. If a challenger successfully shows that such a violation occurred, the operation of the law is void as to the party asserting the claim. See Anderson, 56 Wis. 2d at 672.

Due Process – Generally

¶17     An individual’s substantive and procedural due process rights are rooted in the Fourteenth Amendment to the United States Constitution, and Article I, Section 1 of the Wisconsin Constitution. ^[9] Kenosha County Dep’t of Human Servs. v. Jodie W., 2006 WI 93, ¶39 & n.17, 293 Wis. 2d 530, 716 N.W.2d 845. “The right to substantive due process addresses ‘the content of what government may do to people under the guise of the law.'” Dane County Dep’t of Human Servs. v. Ponn P., 2005 WI 32, ¶19, 279 Wis. 2d 169, 694 N.W.2d 344 (quoting Reginald D. v. State, 193 Wis. 2d 299, 307, 533 N.W.2d 181 (1995)). An individual’s substantive due process rights protect against a state action that is arbitrary, wrong, or oppressive, without regard for whether the state implemented fair procedures when applying the action.  Ponn P., 279 Wis. 2d 169, ¶19 (citing Monroe County Dep’t of Human Servs. v. Kelli B., 2004 WI 48, ¶19, 271 Wis. 2d 51, 678 N.W.2d 831). In contrast, the question of fairness is addressed as a matter of procedural due process. In other words, even if a challenge that a government action deprives “‘a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner.'” State v. Laxton, 2002 WI 82, ¶10 n.8, 254 Wis. 2d 185, 647 N.W.2d 784 (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). We begin with Wood’s challenge under substantive due process principles.

Binding Authority – Federal Court Decision
“As an initial matter, federal district court cases are not binding authority on this court.  See State v. Mechtel, 176 Wis. 2d 87, 94-95, 499 N.W.2d 662 (1993),” ¶18. (Thus, Wisconsin is not required to follow a district court decision invalidating a statute, id.)

Mechtel itself leaves little room for doubt on the general principle: “determinations on federal questions by either the federal circuit courts of appeal or the federal district courts are not binding upon state courts.” Habeas is different, at least with respect to the immediate litigant, 176 Wis. 2d 95-96. Indeed, there have been instances in which the habeas litigant was granted relief, but Wisconsin courts refused to apply to other litigants the holding established in the habeas case. To take but one example: McMorris v. Israel, 643 F.2d 458 (1981) (defense right to admit favorable polygraph result), subsequently deemed by Wisconsin supreme court to have “erred” by virtue of “a mistaken interpretation” of prior caselaw, State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628, 642 (1981). Makes for an interesting federal problem, though: a federal court declares a Wisconsin statute unconstitutional, and the Wisconsin court says, we don’t care.

NGI Commitments – Forced Medication – Constitutionality of § 971.17(3)(c) re: Finding of Dangerousness

¶25      To summarize, Harper, Riggins, and Sell compel the following conclusions. First, a person competent to make medical decisions has a “significant” liberty interest in avoiding forced medication of psychotropic drugs. See Harper, 494 U.S. at 221. Second, in light of that interest, the state may not order the administration of psychotropic drugs to a mentally ill individual unless it demonstrates an overriding justification to administer the drugs and a determination of medical appropriateness. See Riggins, 504 U.S. at 135. The incursions that substantive due process permits largely depend on what the state’s overriding interest entails. For example, in the context of a mentally ill inmate or detainee in a jail or prison, where the safety and security of the institution is the state’s interest, one way the state can establish an overriding justification addressing that interest is to demonstrate that the person is dangerous to self or others and, considering less intrusive alternatives, that medication is in the person’s medical interest. See Riggins, 504 U.S. at 134-35;Harper, 494 U.S. at 225-26. In other contexts, however, such as when the state seeks to administer medication to render a nonviolent detainee competent to stand trial, dangerousness need not be demonstrated; rather, a finding that the administration of drugs will affect the defendant’s rights to a fair trial is sufficient. See Sell, 539 U.S. at 180-81.

Measured against these strictures, § 971.17(3)(c) is constitutional:

¶32      …  Based on the operation of the statutory scheme, adjudging an individual NGI has the effect of holding that, because of mental illness, the individual commits crimes for which he or she lacks “substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of law.” Wis. Stat. § 971.15(1). In that way, institutions holding individuals adjudged NGI have a somewhat different interest than a prison would.  In an institution such as Mendota, that interest is in treating the underlying mental illness in order to prevent more criminal behavior and prepare the individual for conditional release and for eventual release from the commitment.

¶33      In light of that overriding interest and the nature of original proceedings in which a defendant is adjudged NGI, we do not believe that a finding of present dangerousness is required when considering whether to issue an order to forcibly medicate such an individual. See Sell, 539 U.S. at 181-82 (a finding of dangerousness is not required where the relevant state interest is unrelated to institutional safety and security). The express findings required in Wis. Stat. § 971.17(3)(c) and articulated in § 971.16(3) are that the person cannot express an understanding of the advantages, disadvantages, and alternatives to medication or treatment or that he or she has such an understanding but cannot apply it to his or her mental illness in order to make an informed choice. We are satisfied that those findings strike the appropriate balance between the State’s overriding interest in medicating a forensic NGI patient and that patient’s interest in having the ability to refuse medication or treatment.

…

¶38      Those requirements, taken together, create at least an implicit finding of dangerousness, if not an express finding, that serves as a basis for a court to consider granting a motion for an involuntary medication order. In other words, those findings of dangerousness based on the original commitment under § 971.17(3) and based on the denial of a petition for conditional release under § 971.17(4)(d) continue to be present until they are changed or upset. With such a basis present, a court evaluating a motion for an involuntary medication order need not make separate or independent findings of dangerousness.

A finding of dangerousness, the court repeats, is simply not required, ¶¶40, 46. But such a finding is, the court goes on to say, embedded in the administrative directive (AD-11-97) followed by the institution before seeking involuntary medication, ¶¶41-46.

NGI Commitments – Forced Medication – Constitutionality of § 971.17(3)(c) re: Periodic Review
§ 971.17(3)(c) is constitutional with respect to the review process. Review of the decision to involuntarily medicate doesn’t require an “independent decisionmaker,” ¶64. And, administrative review 6 months after issuance of the order, with right of appeal to court, suffices for due process purposes, ¶¶65-66.

NGI Commitments – Assistance of Counsel: Physical Separation from Attorney at Hearing
Woods’ “remote” appearance by video at the hearing on judicial review of his forced medication order didn’t support a claim on ground of ineffective assistance, ¶¶70-78.

Woods relied on Van Patten v. Deppisch, 434 F.3d 1038 (7^th Cir. 2006), “in which the Seventh Circuit Court of Appeals held that an attorney who appeared on speaker phone at the defendant’s plea hearing presumptively provided ineffective assistance of counsel,” ¶75. But the Supreme Court reversed, in Wright v. Van Patten, 552 U.S. 120 (2008)—not on the merits of the issue, but on the purely procedural point that the 7^th shouldn’t have reached the issue on habeas review. The court’s discussion now is entirely unsatisfactory, merely pointing out that Woods never requested an opportunity to confer privately with counsel, ¶77. As if acknowledging the short shrift it has just given to an issue that is both recurrent and significant, the court cautions, ¶77 n. 25:

To clarify, we conclude that Wood’s argument fails due to lack of prejudice. Because of that, we do not reach the important issue of what requirements the Sixth Amendment imposes on telephonic appearances to protect a defendant’s ability to privately consult with counsel and how those requirements apply to the first prong of the Strickland analysis.

Yeah, well, the court did more or less just reach “the important issue,” in the sense that it seemingly decided with virtually no discussion that an analysis of prejudice does apply. Perhaps it makes a difference who appears “remotely.” In this instance, counsel was in court, Wood appeared by video. By contrast, Van Patten was in court and his attorney appeared by phone. The 7^th had held (again: reversed on procedural not substantive ground) that this setup amounted to denial of counsel, hence the error was “structural” and prejudice simply irrelevant. (“Physical presence is necessary not only so that counsel can keep an eye on the client and the prosecutor, but so the court can keep an eye on counsel. … Because the physical absence of counsel from a hearing where a defendant gives up his most valuable constitutional rights and admits his guilt to a serious charge is a structural defect, the district court erred in finding that the error could be analyzed under a harmless standard.”) Could be, then, that it’s the physical absence of counsel from court, and not the physical separation of counsel from client, that determines the analysis. And, of course, as the court just got done reminding, federal holdings don’t bind it anyway.

Jennifer M. v. Franz Maurer, 2010 WI App 8

Issue: “(W)hether a circuit court has authority to order a represented adult ward to submit to an interview with her guardian ad litem, outside the presence of her counsel and over her attorney’s objection, where the order also requires the guardian ad litem to report the content of the interview to the circuit court,” ¶1.

Holding:

¶11 The policies underlying the no-contact rule are of sufficient importance in guardianship cases that the right to counsel guaranteed by Wis. Stat. § 54.42(1)(b) includes the ward’s right to have counsel present during an interview with the guardian ad litem for the purpose of making a report to the court. A ward placed under a guardianship of the person has been found incompetent in that “the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety.” Wis. Stat. § 54.10(3)(a)2. This fact enhances the disparity in legal skill between the guardian ad litem and the ward. Additionally, the presence of adversary counsel during an interview with the ward’s guardian ad litem prevents the guardian ad litem from manipulating the distinction between the ward’s best interests and his or her expressed interests, inquiries that may be fraught with tension. See Knight, 2002 WI 27, ¶¶53-54. Finally, to the extent such an interview may reveal information protected by the attorney-client relationship, the right to counsel helps prevent the inadvertent disclosure of privileged information.

As to how disputes between adversarial and “best-interest” counsel might be refereed, the court says, ¶12 n. 6: “Though in our view the rules governing the guardian ad litem interview are similar to those governing oral depositions in which evidence is taken subject to objection, see Wis. Stat. § 804.05(4)(b), oversight of the parties’ conduct is a matter reserved to the circuit court’s discretion.” As for SPD representation in this context, the Operations Manual explains: “The State Public Defender does not provide representation in proceedings to have a person declared incompetent under section 54.34, Stats., unless the guardianship proceeding is coupled with a petition for protective placement or protective services.” See § 977.05(4)(i)8.

court of appeals decision (3-judge, not recommended for publication); for Oliver: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp. Br.; Reply Br.

SVP – Evidence
1. Unobjected-to testimony by a state evaluator that DHS psychologists are more “conservative” in their conclusions than other SVP experts did not “cloud” the issue and therefore did not support new trial in the interest of justice, ¶¶12-14.

2. Unobjected-to testimony by one state expert that commitment was supported in 27% of evaluations, and by another state expert that the figure was 70%, did not “cloud” the issue and therefore did not support new trial in the interest of justice, ¶¶15-18.

3. Unobjected-to testimony by a state expert’s expert that after DOC referral of Oliver’s case to the AG for a petition, probable cause was found to keep him detained for further evaluation was inadmissible, “because it suggested, without explaining why, that Oliver was more likely to be sexually dangerous because of the screening process described.” However, “the bulk of the expert testimony cut against Oliver, and there was no neutral, court-appointed expert who testified in Oliver’s favor,” and  new trial in the interest of justice wasn’t supported, ¶¶19-23.

SVP – Jury Instructions – “Acts of Sexual Violence”
Unobjected-to instruction – that “[a]cts of sexual violence means acts which would constitute sexually violent offenses as defined by the Wisconsin Statutes.  Enticing a child for immoral purposes and first degree sexual assault of a child are sexually violent offenses.” – did not “cloud” issue and therefore did not support new trial in interest of justice, ¶¶25-27.

SVP – Closing Argument
Prosecutor’s closing argument, to the effect that “most” perpetrators do not get caught, was not improper but, rather, made the point “that the evidence showed that reconviction rates underestimate reoffense rates,” ¶¶29-33.

court of appeals decision (3-judge, not recommended for publication); BiC; Resp. Br.; Reply Br.
Reversed, 2011 WI 12

Evidence – Extraneous Misconduct – “Context”
On trial for sexual assault of defendant’s young stepdaughter, evidence that defendant also burned her hand was not admissible to show the “context” of the alleged crime.

¶15      Here, in contrast, the hand burning evidence did not explain M.M.L.’s behavior in reporting the incident.  The State asserts generally that M.M.L.’s testimony is more credible because M.M.L. previously reported the hand burning and Marinez was then convicted of that offense.  But there are two problems with this rationale. First, no evidence was introduced to the jury establishing that Marinez was, in fact, convicted of burning M.M.L.’s hands, thus establishing her credibility in reporting abuse by Marinez.  Additionally, we decline to adopt the State’s reasoning that a child’s credible report of bad behavior against a defendant is admissible as other acts evidence to support the child’s credibility in reporting unrelated charged behavior.  The State does not support this proposition with authority or reasoned argument.[6] To the extent it relies on Hunt, that reliance is misplaced.  In Hunt, the challenged evidence helped explain why the victims would have falsely recanted.  That is, the evidence directly explained why the victims had a motive to falsely recant.  Here, even assuming that it was established that M.M.L. was truthful about the hand burning incident, that fact does not help establish that she was truthful about the unrelated assault allegation.[7]

¶16      The State also argues generally that the hand burning evidence was necessary to fully establish its case. …

…

¶17      … We disagree with the State that these statements were necessary to fully establish its sexual assault case against Marinez.  The statements were not, as the State contends, “inextricably intertwined with [M.M.L.’s] statements about the sexual assault.”  Rather, the statements were easily separated from the sexual assault allegations, and the two events were presented as distinct incidents.  Even assuming the greater latitude rule applies in this context, that does not overcome the fact that the evidence was not offered for a proper purpose.  See id., ¶52 (“The greater latitude standard does not relieve a court of the duty to ensure that the other acts evidence is offered for a proper purpose under [WIS. STAT. §] 904.04(2).” (citation omitted)).

court of appeals decision (1-judge, not for publication); for James M.: Shelley Fite, SPD, Madison Appellate

TPR – Voluntariness of Plea

¶24      Because Wisconsin statutory law does not permit a court to terminate parental rights upon a finding of unfitness without completing the dispositional phase, we see no rationale for requiring a court to inform a parent that a finding of unfitness results in the automatic loss of the constitutional right to parent.  This is confusing information, given that a parent does not lose this right under Wisconsin statutory law until an order is entered terminating his or her parental rights.  What is important for a parent to understand is that, with the acceptance of his or her plea, the parent no longer has the right to have the State prove unfitness, there will be a finding of unfitness upon acceptance of their plea, and the only issue that remains is the best interest of the child, which the court could decide requires a termination of parental rights.  The colloquy here (apart from the absence of reference to the finding of unfitness) ascertained that James and Diane each understood this.  Knowledge that, as a matter of constitutional law, a court could terminate parental rights upon the acceptance of a plea and a finding of unfitness is not a meaningful addition to the knowledge that a Wisconsin parent should have in order to enter a knowing and voluntary plea, given that this is not permitted in Wisconsin.

TPR – Voluntariness of Plea – § 48.422(7)(bm)

¶28      James asserts his plea was invalid because, before accepting his plea, the court did not establish whether there was a proposed adoptive parent and did not order the County to submit the report required by WIS. STAT. § 48.422(7)(bm). He contends the circuit court erred in dismissing his motion on this ground under a Bangert analysis because this provision is not directed to informing a parent of his or her rights. Rather, he asserts, this subsection imposes an obligation on the court, before accepting a plea, to order the County to submit the prescribed report if a proposed adoptive parent has been identified who is not a relative of the child, and the court’s failure to do this entitles him to withdraw his plea.

…

¶31     We agree with James that the record does not show compliance with WIS. STAT. § 48.422(7)(bm), but we are not persuaded that he is entitled to withdraw his plea as a result. James’ argument overlooks the significant fact that the report required by § 48.422(7)(bm) is to disclose transfers of anything of value made or agreed to be made by or on behalf of the proposed adoptive parent to James. See § 48.913(7). The evident purpose is to ensure that James is not entering a plea because of such transfers or promises. The court is also required to “[e]stablish whether any promises or threats were made to elicit an admission,” § 48.422(7)(b), which can be accomplished by addressing the parent entering the plea. Subsection (7)(bm) provides additional protection from coercion that might arise from the proposed adoptive parent giving or promising something of value to the birth parent, which the birth parent might not disclose to the court.