                                                                      2014 WI 16

                  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 SUPREME COURT DECISION
                         (Reported at 348 Wis. 2d 450, 832 N.W.2d 609)
                                       PDC No: 2013 WI 59

OPINION FILED:          March 26, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCUR/DISSENT:      BRADLEY, J., ABRAHAMSON, C.J., concur and
                        dissent in part. (Opinion filed.)

  NOT PARTICIPATING:    PROSSER, GABLEMAN, J.J., did not participate.

ATTORNEYS:
       For        the   plaintiff-appellant-cross-respondent-petitioner,
there was a motion for reconsideration by Marguerite Moeller,
assistant         attorney   general,    and   J.B.   Van   Hollen,     attorney
general.




       For the defendant-respondent-cross-appellant, there was a
motion for reconsideration 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.
                                                                            2014 WI 16
                                                                      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.                                                              MAR 26, 2014

Samuel Curtis Johnson, III,                                            Diane M. Fremgen
                                                                    Clerk of Supreme Court

            Defendant-Respondent-Cross-Appellant.




      MOTION for reconsideration.           Reconsideration granted.



      ¶1    PER CURIAM.        On July 3, 2013, this court issued a per

curiam opinion in State v. Johnson, 2013 WI 59, 348 Wis. 2d 450,

832   N.W.2d 609,      which     modified   and       affirmed     the    unpublished

decision    of   the     court    of   appeals,        State     v.     Johnson,      No.

2011AP2864-CRAC, unpublished slip op. (Wis. Ct. App. Apr. 18,

2012), and remanded the matter to the circuit court for further

proceedings.     On July 22, 2013, both Johnson and the State filed

motions for reconsideration of the court's decision.                           Given the

parties' motions, we acknowledge the necessity of clarifying the
previous per curiam.           The court hereby grants Johnson's motion
                                                                  No.    2011AP2864-CRAC



for   reconsideration       in    order      to    clarify      that     this     court's

previous per curiam opinion represented a deadlock and should

not be read as minority vote pooling.1                    Because this court has

deadlocked, the court of appeals decision must be affirmed.

      ¶2    Specifically,        no   three       justices      reach    agreement     to

either affirm, reverse, or modify the decision of the court of

appeals consistent with precedent.                  Consequently, the court of

appeals decision remains the law of the case.                          See Phillips v.

U.S. Bank Nat'l Ass'n, 2010 WI 131, ¶¶1-2, 329 Wis. 2d 639, 791

N.W.2d 190; Hornback v. Archdiocese of Milwaukee, 2008 WI 98,

¶63, 313 Wis. 2d 294, 752 N.W.2d 862; see also 6A Jay E. Grenig,

Wisconsin Practice Series: Appeal and Review § 55:18 (5th ed.).

In light of the motion for reconsideration and the fact that our

previous    per    curiam   left      the    parties      and    the    circuit     court

without    sufficient     guidance      or      ability   to    proceed     consistent

with precedent, the court is now compelled to clarify that per

curiam.

      ¶3    Relevant to the case at issue, our conclusions are
guided by longstanding precedent.                  State v. Green, 2002 WI 68,

253   Wis. 2d 356,        646    N.W.2d 298;         State       v.     Shiffra,      175

Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993).                     To be clear, as a

court of five justices, we do not herein overturn or modify any

precedent.      Very simply stated, the court of appeals is affirmed

because    no     three   justices      conclude       either      (1)     that    under

      1
       The State's motion for reconsideration related to a
separate issue on jury instructions. The State's motion for
reconsideration is denied.

                                            2
                                                                  No.    2011AP2864-CRAC



Shiffra,    the    victim    must    produce      the     records       if   she    is    to

testify, or (2) that under Green, the victim need not produce

the records in order to testify.

      ¶4     In the case at issue, Shiffra and Green leave each

justice with any one of the above options, but precedent does

not   provide      any    justice    with       the   option      to     consider        the

production of medical records without tethering that production

determination to its impact upon whether the victim may testify.

Green,     253    Wis. 2d 356,      ¶37;       Shiffra,    175    Wis. 2d      at    612.

Precedent instructs us that those considerations are necessarily

tethered together. Simply stated, Shiffra and Green instruct us

that an alleged victim may:

          Produce the medical records and then testify,

          Not produce the records and then not testify, or

          Not    produce   the   records        because    the    records     are       not

           required to be produced, and nonetheless testify.

      ¶5     Critically, our previous per curiam did not clearly

state that the court of appeals must be affirmed because no one
of the above options were accepted by any three justices.                                The

decision to produce and the consequence of whether testimony is

allowed    cannot    be     separated.          Green,     253    Wis. 2d 356,       ¶37;

Shiffra, 175 Wis. 2d at 612.           The prior per curiam was incorrect

to convey that a majority could be reached by separating whether

the medical records must be produced from whether the victim may

testify because such a separation would produce new criteria

that a majority of the court has not authorized.


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                                                                     No.    2011AP2864-CRAC



      ¶6     We   have      been      presented           with        a      motion        for

reconsideration because we failed to make clear that no three

justices have chosen only one of the options above.                              As a point

of clarification, we will briefly expound upon each justice's

legal conclusions.

      ¶7     In the case at issue, Justice Crooks concludes that

Shiffra is good law and if the victim will not produce her

medical     records,     then   she    cannot         testify.        Justice       Crooks'

position is consistent with precedent.                        He would affirm the

decision of the court of appeals.

      ¶8     Consistent     with      the       precedent       in        Green,    Justice

Ziegler concludes that the defendant did not make a sufficient

showing to require an in camera review.                       Thus, the victim need

not   produce     her    records      and       she    may    nonetheless          testify.

Justice     Ziegler     would   reverse         the   decision       of    the     court    of

appeals.

      ¶9     Justice Roggensack similarly concludes that the victim

need not produce her medical records and that she may testify,
but   Justice     Roggensack       would         overrule      Shiffra.             Justice

Roggensack     further     concludes        that,      even    if     Shiffra       is     not

overruled, the requisite showing under Green has not been made

so as to require the victim to produce her records and that the

victim may testify.        Thus, Justice Roggensack would also reverse

the decision of the court of appeals.

      ¶10    Chief Justice Abrahamson and Justice Bradley, however,

do not adopt any of the above Shiffra or Green analyses, nor
would they overrule Shiffra.            Instead, Chief Justice Abrahamson
                                            4
                                                                   No.     2011AP2864-CRAC



and Justice Bradley separate the decision to produce the medical

records from whether the victim is permitted to testify.                                    They

conclude that a majority can be reached by taking a vote on each

issue separately.            We do not adopt this piecemeal approach, as

it is inconsistent with precedent.

      ¶11    Stated differently, neither Chief Justice Abrahamson

nor   Justice       Bradley's        conclusions       accept      any     one        of     the

following options available under longstanding precedent: (1)

the victim must produce her medical records, in order to be

allowed to testify under Shiffra; (2) if the victim refuses to

produce her medical records, then she is not allowed to testify

under Shiffra; and (3) if there is no showing so as to require

the   victim       to     produce    her     medical       records       for    in     camera

inspection, she may nonetheless testify under Green.

      ¶12    Instead, Chief Justice Abrahamson and Justice Bradley

would first determine whether a victim must produce her records,

and   then    make       a   separate      determination      on     whether          she    may

testify, without accounting for the necessary connection between
the two considerations.              The procedure espoused by Chief Justice

Abrahamson        and    Justice     Bradley     is    a    departure          from    common

practice     and        precedent.         Circuit     courts      and     counsel          have

functioned well using the Shiffra/Green analysis for many years,

and   we    are    mindful     not    to    inadvertently       or       unintentionally

overturn that precedent in this five-justice, per curiam opinion

that has no majority.

      ¶13    As a result, since a majority of the court has not
reached consensus under precedent so as to decide the issue
                                             5
                                              No.   2011AP2864-CRAC



presented and the court is deadlocked, the decision of the court

of appeals must be affirmed.

    By the Court.—The motion for reconsideration is granted.

    ¶14   DAVID T. PROSSER, J., and MICHAEL J. GABLEMAN, J., did

not participate.




                               6
                                                           No.   2011AP2864-CRAC.awb


      ¶15     ANN    WALSH    BRADLEY,     J.     (concurring      in     part   and

dissenting      in    part).       In     granting    Johnson's         motion   for

reconsideration, the per curiam purports to "clarify that this

court's previous per curiam opinion represented a deadlock."1

Per       curiam,    ¶1;     see   also       id.,   ¶13     ("the       court    is

deadlocked . . . ").         It makes this contention despite the fact

that the previous per curiam was unanimous in its conclusion and

direction to the circuit court.

      ¶16     There was no deadlock.            All five justices sitting on

the case unanimously concluded and directed that "[u]pon remand,


      1
       In its mandate of "Reconsideration granted," the per
curiam appears to depart from our normal procedure. In its text,
the per curiam indicates that it is "clarifying the previous per
curiam."     Per curiam, ¶1; see also id. ("in order to
clarify . . . ."); ¶2 ("the court is now compelled to
clarify . . . ."); ¶6 ("As a point of clarification . . ."). If
the per curiam is truly "clarifying" the previous per curiam, as
it purports to do, then the appropriate approach is to deny the
motion and issue a clarification. See, e.g., Industrial Roofing
Services, Inc. v. Marquardt, 2007 WI 62, ¶¶3, 4, 301 Wis. 2d 30,
731 N.W.2d 634 (denying the motion but writing further to
clarify the opinion); DaimlerChrysler v. LIRC, 2007 WI 40, 300
Wis. 2d 133, 729 N.W.2d 212 (denying the motion but writing
further to clarify the opinion); Metropolitan Ventures v. GEA
Associates, 2007 WI 23, 299 Wis. 2d 174, 727 N.W.2d 502
(amending footnote to "clarify our opinion to decide issues
raised by the parties but not decided by the court.").

     Additionally, at the outset and in its mandate, the per
curiam refers to a sole motion for reconsideration ("Motion for
reconsideration.    Reconsideration granted.").   In its first
paragraph, however, the per curiam notes that the State also
filed a motion for reconsideration, and denies that motion in a
footnote, without any accompanying discussion. Per curiam, ¶1,
n.1.   Accordingly, I concur in part and dissent in part. I
concur in the per curiam's footnote denial of the State's motion
for reconsideration, and dissent from its mandate, granting
Johnson's motion for reconsideration.

                                          1
                                                     No.   2011AP2864-CRAC.awb


the circuit court may not require production of the privately-

held, privileged mental health records for in camera review.

However,   upon   remand,   the   privilege-holder     may   be   called   to

testify in this case."       State v. Johnson, 2013 WI 59, ¶9, 348

Wis. 2d 450, 832 N.W.2d 609.       Additionally, the per curiam fails

to explain how an odd number of justices can be deadlocked.

This case is not like the three-three split cases cited by the

per curiam.   Per curiam, ¶2.2

     ¶17   The per curiam mistakenly concludes that Shiffra and

Green provide only three options regarding production of records

and testimony of an alleged victim.           It concludes that only

three options exist because of its belief that "[t]he decision

to produce and the consequence of whether testimony is allowed

cannot be separated."       Id., ¶5.     This cribbed view incorrectly




     2
       To the extent that the per curiam suggests that because we
are sitting as a court with only five justices that our opinions
are not precedential, it is simply incorrect.

     This court can and has previously issued opinions with five
sitting justices, in which the justices were split 3-2 on
individual issues.   See In re Disciplinary Proceedings against
Humphrey, 2012 WI 32, ¶97, 339 Wis. 2d 531, 811 N.W.2d 363
("That only five justices participate in a matter before this
court is not an everyday occurrence, but it is not an
irregularity. A five-justice decision, with two justices not
participating after being given the opportunity to do so, is
valid."); see also State v. Braun, 100 Wis. 2d 77, 301
N.W.2d 180 (1981) (Abrahamson, J. and Heffernan, J. dissenting;
Callow, J. and Coffey, J. not participating); Wussow v.
Commercial Mechanisms, Inc., 97 Wis. 2d 136, 293 N.W.2d 897
(1980) (Coffey, J. and Hansen, J., dissenting; Abrahamson, J.
and Steinmetz, J. not participating).



                                     2
                                                                          No.    2011AP2864-CRAC.awb


interprets Shiffra as if the only remedy available for refusal

to produce records is to suppress the victim's testimony.

       ¶18    This approach ignores the validity of a fourth option—

—the option which was provided for in the previous per curiam,

which was unanimous.

       ¶19    Shiffra provides that there must be some remedy for a

refusal      to    produce    records,         but           exclusion          of   the    victim's

testimony is not the only possible remedy.                             The court in Shiffra

expressly       contemplated       that        a       variety       of     sanctions        may    be

appropriate depending on the circumstances.                                 State v. Shiffra,

175 Wis. 2d 600, 612, 499 N.W.2d 719 (Ct. App. 1993) ("The only

issue     remaining      is    whether             the       trial        court       misused      its

discretion when it suppressed Pamela's testimony as a sanction

for her refusal to release the records.                              In this situation, no

other sanction would be appropriate.                          The court did not have the

authority to hold Pamela in contempt . . . .                                    An adjournment in

this     case       would     be     of        no         benefit . . . .                 Under    the

circumstances, the only method of protecting Shiffra's right to
a fair trial was to suppress Pamela's testimony if she refused

to disclose her records.")             (Emphasis added.)

       ¶20    Indeed, this is the interpretation of Shiffra accorded

by     its   author.          State       v.           Johnson,      No.         2011AP2864-CRAC,

unpublished slip op.,              ¶¶23-28 (Wis. Ct. App. Apr. 18, 2012)

(Brown, C.J., dissenting).                As he explained, Shiffra does not

necessarily        require    suppression               of    T.S.'s       testimony        in    this

case,    despite      the    refusal      to           release    medical            or   counseling
records.          Id., ¶24.        The central focus of the rationale in

                                                   3
                                                          No.   2011AP2864-CRAC.awb


Shiffra was the principle that "[w]hen there are two competing

and    compelling    societal    interests,     it   is    for    the    court   to

balance these interests on a case-by-case basis.                  The courts are

especially equipped for this task.              Indeed, it is what judges

do."    Id., ¶27.

       ¶21   The per curiam's citation to Shiffra and Green does

not show that the decision to produce and the suppression of

testimony cannot be separated.          See per curiam, ¶¶4-5.            In fact,

the    citation     to   Shiffra    only      reinforces        the   point   that

suppression    of    testimony     is   but    one   of     multiple      possible

sanctions for a refusal to produce records.                     See Shiffra, 175

Wis. 2d at 612.       Likewise, Green does not support the majority's

contention.       It does not even address whether testimony should

be allowed, but rather focuses on whether Green had met his

burden for obtaining in camera inspection of counseling records

by the court.       State v. Green, 2002 WI 68, ¶37, 253 Wis. 2d 356,

646 N.W.2d 298.

       ¶22   Turning to the motions for reconsideration, I would
deny both motions and address each in turn.

       ¶23   The core of Johnson's motion for reconsideration is

his claim that this court's prior per curiam is invalid because

it relies on minority vote-pooling.              Johnson argues that there

is no "majority-backed rationale for 'modifying' the court of

appeals' decision" and the "court of appeals' decision requiring

suppression of T.S.'s testimony must be affirmed."                      In support

of this argument, he cites the rule that "a majority must agree
on some one specific ground of error fatal to the judgment, or

                                        4
                                                          No.    2011AP2864-CRAC.awb


the judgment must be affirmed."                See State v. Gustafson, 121

Wis. 2d 459, 461, 359 N.W.2d 920 (1985) (footnote omitted); see

also Will of McNaughton, 138 Wis. 179, 118 N.W. 997 (1909).

    ¶24     Johnson's     minority      vote-pooling      argument     should      be

rejected for multiple reasons.               First, the rule is inapplicable

because this court's decision does not reverse a circuit court

judgment.     As explained by the Gustafson court, the McNaughton

rationale    for   rejecting     minority      vote-pooling      focuses     on   the

harm that "would result in reversals without adequate guidance

to the trial court upon a new hearing."                   121 Wis. 2d at 462

(emphasis added).       Here, the prior per curiam did not reverse a

judgment.      Rather,     it    affirmed       the    circuit     court's    order

allowing T.S. to testify.

    ¶25     Additionally,       the   previous     per    curiam    provided      the

guidance     envisioned     by    the        McNaughton    court.          Justices

Roggensack    and    Ziegler      found       Johnson     has    not    shown      an

entitlement to in camera review of the records, and thus no

production was required.          Accordingly, T.S. may testify.              Chief
Justice Abrahamson and I found that Johnson had established a

right to in camera review, and that the circuit court was within

its discretion to balance Johnson's right against T.S.'s right

to privacy.    Accordingly, T.S. may testify.              While these are two

different paths to the same destination, they do not result in

any risk of confusion upon remand.                    Unlike the situation in

McNaughton, here the circuit court has guidance on the proper

course to follow: T.S. may testify.



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                                                                       No.   2011AP2864-CRAC.awb


       ¶26    Second, this court's decision in Ives dictates that

the rule against minority vote-pooling does not apply in these

circumstances.        Ives v. Coopertools, 208 Wis. 2d 55, 559 N.W.2d

571 (1997).        In Ives, all six justices hearing the case decided

that   the    court      of     appeals       was       wrong    to    vacate       the    circuit

court's      order.       One       group     of       three    justices      agreed       on   one

rationale,     and       the    other       three      justices       relied    on       different

reasoning.      The court decided that the McNaughton rule did not

apply because all justices agreed on "the proper resolution of

the contributory negligence question" despite dividing on the

rationale.         Id.    at    58.         Here,       similarly,       four      of     the   five

justices participating in the case agree with the circuit court

that   T.S.     may      testify,       despite          dividing       on    the       rationale.

Following Ives, the rule against minority vote-pooling provides

no basis for reconsidering this court's prior per curiam, which

was unanimous.

       ¶27     Furthermore, unlike here, the six justices sitting on

the case in Ives were split down the middle and there was no
majority on any rationale.                    208 Wis. 2d at 57.                Here, as the

previous     per    curiam          opinion    explained,         "there      is     a    majority

regarding each issue presented," but with varying rationales.

Johnson,     348   Wis.        2d    450,     ¶8.        Three    of    the     five      justices

sitting on the case agreed that the circuit court could not

order production of the records, and four of the five justices

concluded that T.S. may testify.                         To the extent the rationales

diverge, that simply goes to the precedential value of each



                                                   6
                                                           No.   2011AP2864-CRAC.awb


justice's rationale, see Ives, 208 Wis. 2d at 57-58.                      It is not

minority vote-pooling.

      ¶28   Johnson's final basis for seeking reconsideration is

his argument that the decision violates Wis. Const. art. I, § 9,

because     the   court       as    a   whole    recognized      that    he   had    a

constitutional right to in camera review, but at the same time

denied him any remedy.             This argument is without merit.

      ¶29   Johnson fails to appreciate the scope and history of

the "right to remedy" clause of Article I, § 9.3                        It has been

interpreted in terms of existing legal rights, and applies only

where "an individual has an independent legislatively-recognized

right" or "common-law right to bring a cause of action."                      Estate

of Makos v. Wiscosnin Masons Health Care Fund, 211 Wis. 2d 41,

62-63, 564 N.W.2d 662 (1997) (Crooks, J., concurring).4                         This

definition cannot stretch to include Johnson's alleged "right"

in this case.          Further, this court has explained that, based on

the   history     of    the   "right     to    remedy"   clause,    it   is   to    be

understood as "primarily addressed to the right of persons to
have access to the courts and to obtain justice on the basis of

the law as it in fact exists."                 Mulder v. Acme-Cleveland Corp.,


      3
        "Every person is entitled to a certain remedy in the laws
for all injuries, or wrongs which he may receive in his person,
property, or character; he ought to obtain justice freely, and
without being obliged to purchase it, completely and without
denial, promptly and without delay, conformably to the laws."
Wis. Const. art. I, § 9.
      4
       Although Estate of Makos was overruled by Aicher v.
Wisconsin Patients Comp. Fund, 2000 WI 98, 237 Wis. 2d 99, 613
N.W.2d 849, Justice Crooks' discussion of the history and
purpose of the "right to remedy" clause remains useful.

                                           7
                                                                    No.    2011AP2864-CRAC.awb


95 Wis. 2d 173, 189, 290 N.W.2d 276 (1980).5                          This case does not

involve any concern about Johnson's access to the courts, nor

does he allege as much.                  Accordingly, the "right to remedy"

clause      provides      no     basis        for        reconsidering          this   court's

decision.

      ¶30     I examine next the State's motion for reconsideration.

Essentially, the State seeks direction on whether the circuit

court's      proposed     remedy        of     a       curative   jury         instruction    is

permissible.         Specifically, it asks the court to reconsider or

clarify "that portion of its decision regarding the propriety of

a special instruction allowing the jury to draw an inference

favorable to the defense from T.S.'s invocation of her statutory

privilege regarding her therapy records."                           The prior per curiam

did   not    discuss      the    jury    instruction          issue,       but     included   a

footnote      stating     that     Chief       Justice       Abrahamson          and   I    both

concluded     that     the      jury    instruction          here    was        impermissible.

Johnson, 348 Wis. 2d 450, ¶4 n.4.

      ¶31     Due to the previous per curiam's silence as to the
position      of    the   other        three       participating          justices     on    the

curative instruction, the State is concerned the decision could

be    read     to     mean      that         the       instruction        is     permissible.

Technically,        however,     no     real       clarification          is    needed.      The


      5
       Similarly, other decisions have recognized that the "right
to remedy" clause originated out of concern that citizens should
have access to the courts to remedy existing legal rights, as to
a medical malpractice action, and should not have to bribe
public officials in order to obtain access to courts.     Aicher,
237 Wis. 2d 99, ¶¶41-44; James A.O. v. George C.B., 182 Wis. 2d
166, 175, 513 N.W.2d 410 (Ct. App. 1994).

                                                   8
                                                          No.    2011AP2864-CRAC.awb


previous per curiam affirmed the court of appeals subject to

modification, and the court did not modify that part of the

court   of     appeals'    opinion        that        rejected     the    curative

instruction.      As   such,   the   court       of    appeals'    rationale    and

rejection of the proposed curative instruction stands as the

last word on the subject.            State v. Johnson, No. 2011AP2864-

CRAC, unpublished slip op., ¶18 (Wis. Ct. App. Apr. 18, 2012).

    ¶32      For the reasons set forth above, I respectfully concur

in part and dissent in part.

    ¶33      I am authorized to state that CHIEF JUSTICE SHIRLEY S.

ABRAHAMSON joins this opinion.




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    No.   2011AP2864-CRAC.awb




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