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Wis. justices remove appellate brief hurdle

By: Jane Pribek//April 10, 2013//

Wis. justices remove appellate brief hurdle

By: Jane Pribek//April 10, 2013//

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By a 4-3 vote Tuesday, the Wisconsin Supreme Court removed a hurdle to writing appellate briefs in criminal cases.

The justices interpreted the Presentence Investigation statute, holding that in merit appeals lawyers don’t need court permission to use information from a PSI in an appellate brief.

However, attorneys only may use PSI information that doesn’t reveal confidential information, and is relevant to the appeal, the majority cautioned.

Joe Ehmann, who argued the agency’s position in Office of the State Public Defender v. Court of Appeals, said the majority opinion “affirms the status quo.”

“It promotes efficiency,” he said, “saves money and is a practical interpretation of the law.”

Facts

The rulings stem from Assistant State Public Defender Steven Grunder’s attempts to use information from defendant Michael Buchanan’s PSI.

Grunder sought permission from the court of appeals to use, cite to and quote from the PSI in his brief. The court of appeals granted his motion.

The state filed a motion seeking the same, but noted, since 2005 when State v. Parent came down, it’s the attorney general’s practice to seek circuit court permission to cite a PSI in an appellate brief. In Parent, in a no-merit appeal, the state Supreme Court held that a defendant is entitled to view a copy of the PSI, subject to redaction of identifying information of informants and to the requirement that the defendant keep the information confidential.

The court of appeals then directed the parties to move the circuit court for permission to cite the PSI, denying the state’s motion.

The SPD petitioned the high court to issue a supervisory writ Wisconsin Court of Appeals’ order and clarifying that parties don’t have to obtain permission from any court to cite a PSI in appellate briefs.

The opinion

The majority held the SPD didn’t meet the requirements for a supervisory writ, but invoked its “superintending and administrative authority” to grant the relief the agency sought.

The dispute centered around varying interpretations of the PSI statute, § 972.15. Subd. 4 states that, with some exceptions, a PSI is “confidential” and “shall not be made available to any person except upon specific authorization of the court.” Subd. 4m lists the exceptions: “the district attorney and the defendant’s attorney.” It additionally reads that attorneys may “have and keep a copy” of the PSI, but must keep it confidential.

The Wisconsin Court of Appeals argued that under the statute, the circuit court alone may authorize access to the PSI.

In contrast, among its arguments, the SPD contended the statute, which authorizes the district attorney and the defendant’s attorney “to have and keep a copy” of the PSI, should be interpreted to authorize those parties to use, cite and quote the PSI in an appellate brief without court authorization. The SPD additionally argued that Parent should be limited to no-merit appeals.

The majority sided with agency.

“It is true that Wis. Stat. § 967.02(7) defines ‘court’ as the circuit court and Wis. Stat. § 972.15 otherwise requires court authorization to release the PSI,” Justice Annette Ziegler wrote. “However, this determination does not fully consider that the defendant’s attorney and the State are already entitled ‘to have and keep a copy’ of the PSI under Wis. Stat. § 972.15(4m).”

The majority distinguished its holding from Parent, which focused on access to the PSI, not use of the PSI. The majority agreed it applies only to no-merit appeals.

The majority opinion, and several footnotes, contain warnings to counsel, such as, “We urge counsel to be abundantly cautious when deciding whether it is necessary to cite sensitive information and when choosing how to cite such content.”

In another footnote, the majority observed that its holding applies only to counsel, leaving open the question of which procedure a pro se defendant should follow.

The majority concluded, “[I]f appellate counsel, in the process of writing an appellate brief, is unsure whether information from a PSI can be included, he or she can ask the court of appeals for guidance or can file the brief under seal until the court of appeals can decide whether the brief complies with rules of confidentiality. Opposing counsel could also move to strike inappropriate parts of the appellate brief.”

Justice Ann Walsh Bradley, joined by Chief Justice Shirley Abrahamson and Justice N. Patrick Crooks, dissented.

Bradley wrote that the majority “turns the statutory language on its head.”

The dissenters advocated a different procedure, where information in the PSI that’s already been made public in the circuit court for sentencing may be used in an appellate brief. Court permission would then be sought for any information not previously made public.

The effect

“For 40 years,” Ehmann said, “public defenders have been ripping open envelopes and looking at PSIs. There’s been no incident or problem identified in any case, anywhere. This was just a case about confusion about what the word ‘confidential’ means.”

In an unusual move, the state filed an amicus brief agreeing with the SPD.

That brief’s author, Assistant Attorney General Margie Moeller, said, “I’m happy that we won’t have to go through the procedure of asking the circuit court for permission to cite the PSI in a brief. It’s more convenient to both sides of an appeal.”

Pat Fiedler of Axley Brynelson in Madison argued the case for the court of appeals.

The opinion gives additional, useful clarity, he said.

“The factual record shows there was some confusion on the part of lawyers if they want to quote from and use the PSI on appeal — what’s the procedure by which they can do that,” Fielder said. “Now it’s very clear.”

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