                                                                      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 App. 2012 – Unpublished)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.




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                                                                                   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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                                                                      No.   2011AP2864-CRAC



     ¶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.

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                                                                          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
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                                                           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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    No.   2011AP2864-CRAC




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