2013 WI 59

SUPREME COURT OF WISCONSIN CASE NO.: 2011AP2864-CRAC COMPLETE TITLE: State of Wisconsin, Plaintiff-Appellant-Cross-Respondent- Petitioner, v. Samuel Curtis Johnson, III, Defendant-Respondent-Cross-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 341 Wis. 2d 492, 815 N.W.2d 407 (Ct. App. 2012 – Unpublished)

OPINION FILED: July 3, 2013 SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 25, 2013

SOURCE OF APPEAL: COURT: Circuit COUNTY: Racine JUDGE: Eugene A. Gasiorkiewicz

JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: PROSSER, GABLEMAN, JJ., did not participate.

ATTORNEYS: For the plaintiff-appellant-cross-respondent-petitioner, the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-respondent-cross-appellant, there was a brief by Michael F. Hart, Craig S. Powell, Geoffrey R. Misfeldt, and Kohler & Hart, S.C., Milwaukee, and Mark D. Richards and Richards & Hall, S.C., Racine, and Stephen J. Meyer and Meyer Law, Madison. The cause was argued by Mark D. Richards. An amicus curiae brief was filed by Kathleen Quinn, Milwaukee, on behalf of T.S. An amicus curiae brief was filed by Eric J. Wilson and Dustin B. Brown and Godfrey & Kahn, S.C., Madison, on behalf of the Wisconsin Coalition Against Sexual Assault.

2 2013 WI 59 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2011AP2864-CRAC (L.C. No. 2011CF376)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant-Cross-Respondent- Petitioner, FILED v. JUL 3, 2013 Samuel Curtis Johnson, III, Diane M. Fremgen Clerk of Supreme Court Defendant-Respondent-Cross-Appellant.

REVIEW of a decision of the court of appeals. Cause

remanded, affirmed as modified.

¶1 PER CURIAM. This is a review of an unpublished

opinion of the court of appeals that affirmed in part and reversed in part an order of the circuit court.1 Three issues

are presented for review:

1 State v. Johnson, No. 2011AP2864-CRAC, unpublished slip op. (Ct. App. Apr. 18, 2012), affirming in part and reversing in part the circuit court for Racine County, Eugene A. Gasiorkiewicz, J., presiding. No. 2011AP2864-CRAC

¶2 First, should State v. Shiffra, 175 Wis. 2d 600, 499

N.W.2d 719 (Ct. App. 1993), be overruled because its holding

rests on an erroneous premise that Pennsylvania v. Ritchie, 480 U.S. 39 (1987) mandates the pretrial in camera review of

privately-held, privileged records? A majority of the court

would not overrule Shiffra. Chief Justice Abrahamson, Justice

Bradley, Justice Crooks, and Justice Ziegler conclude that

Shiffra should not be overruled, observing that this court has

reaffirmed or applied Shiffra in a number of cases.2 Justice

Roggensack concludes that Shiffra should not be applied to

mental health records that are privately held and privileged.

¶3 Second, if Shiffra is not overruled, has the defendant

met his burden under State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, to make an initial showing of materiality

entitling him to an in camera review of the privately-held

records? A majority of the court concludes that he has met the

requisite burden to make an initial showing of materiality.

Chief Justice Abrahamson, Justice Bradley, and Justice Crooks

conclude that the defendant has satisfied his burden under

Green. Justice Roggensack and Justice Ziegler conclude that the

defendant has not satisfied his burden.

2 See, e.g., Johnson v. Rogers Memorial Hosp., Inc., 2005 WI 114, ¶¶72-73, 283 Wis. 2d 384, 700 N.W.2d 27; State v. Allen, 2004 WI 106, ¶31, 274 Wis. 2d 568, 682 N.W.2d 433; State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298; State v. Rizzo, 2002 WI 20, 250 Wis. 2d 407, 640 N.W.2d 93; State v. Solberg, 211 Wis. 2d 372, 564 N.W.2d 775 (1997); State v. Speese, 199 Wis. 2d 597, 545 N.W.2d 510 (1996).

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¶4 Third, if Shiffra is not overruled, may the circuit

court require production of the privately-held, privileged

mental health records in this case for in camera review when the

17-year-old privilege-holder refuses to consent to their

release? Chief Justice Abrahamson and Justice Bradley agree

with Judge Brown’s dissent in the present case at the court of

appeals that the circuit court may require production of the

records for an in camera review and that Shiffra does not

necessarily require the suppression of the privilege-holder’s

testimony if she refuses to release her records.3 They would

affirm the circuit court’s determination in this case, which has

already balanced the competing interests, concluding that

suppression of the privilege-holder’s testimony is neither

required nor appropriate as a sanction here.4 Justice Crooks and

Justice Ziegler conclude that the court may not require

production, but their rationales differ. Justice Crooks

concludes that the privilege-holder may not testify without

3 State v. Johnson, No. 2011AP2864-CRAC, ¶24, unpublished slip op. (Ct. App. Apr. 18, 2012) (Brown, J. dissenting). As Judge Brown concluded, “the [psychiatrist’s] privilege and the right to present a defense are . . . two equally conflicting interests and neither should be given absolute preference over the other. . . . When there are two competing and compelling societal interests, it is for the court to balance these interests on a case-by-case basis.” Id., ¶¶26-27. 4 Chief Justice Abrahamson and Justice Bradley would not affirm the circuit court’s decision to give a curative jury instruction regarding any inferences to be taken from the privilege-holder’s invocation of her privilege because Wis. Stat. § 905.13 prohibits such an instruction or other comment by judge or counsel.

3 No. 2011AP2864-CRAC

voluntarily producing the records under Shiffra. He is

concerned about the defendant’s ability to present a meaningful

defense. Justice Ziegler concludes that the privilege-holder

may testify because the defendant has not satisfied his burden

under Green. Justice Roggensack concludes that the court cannot

require production of the privately-held, privileged mental

health records, and therefore that the privilege-holder may

testify. Thus, under varying rationales, Chief Justice

Abrahamson, Justice Bradley, Justice Roggensack, and Justice

Ziegler agree that in this case, the privilege-holder may

testify and need not produce the records.

¶5 As a result of the responses to the above third issue,

we determine the following:

¶6 First, under varying rationales, a majority of the

court concludes that in this case, the circuit court may not

require production of the privately-held, privileged mental

health records for in camera review.

¶7 Second, under varying rationales, a majority of the

court concludes that the privilege-holder may testify in this case.

¶8 Although there is a majority regarding each issue presented, we limit our writing because of the varied

rationales. ¶9 Accordingly, the decision of the court of appeals is

modified and affirmed. The cause is remanded to the circuit

court for further proceedings. Upon remand, the circuit court

may not require production of the privately-held, privileged 4 No. 2011AP2864-CRAC

mental health records for in camera review. However, upon

remand, the privilege-holder may be called to testify in this

case.

By the Court.—The decision of the court of appeals is

modified and affirmed and, as modified, the cause is remanded to

the circuit court.

¶10 Justices David T. Prosser, Jr. and Michael J. Gableman

did not participate.

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