State v. Samuel Curtis Johnson, III , 353 Wis. 2d 119 ( 2014 )

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832 N.W.2d 609, which modified and affirmed the unpublished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2011AP2864-CRAC, unpublished slip op.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.
3
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.
5
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
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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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1