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BENCH BLOG: Shiffra case causes trouble for state Supreme Court … again

By: Jean DiMotto//July 18, 2016//

BENCH BLOG: Shiffra case causes trouble for state Supreme Court … again

By: Jean DiMotto//July 18, 2016//

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Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected].

In a highly unusual “decision,” the Wisconsin Supreme Court again deadlocked in a Shiffra case but this time issued five different opinions, most of them containing personal sniping.

The end result is twofold: First, the decision of the Court of Appeals stands; second, the court once again embarrassed itself.

Shiffra motion

A Dodge County resident was repeatedly sexually abused by her father. She attempted suicide when she was 10 years old after she reported her father’s abuse. Her report led to her father’s convictions for five felonies. The girl began mental-health treatment and continued counseling for more than 15 years.

Around the time of her father’s abuse, her father’s “good friend” — a police officer named Patrick Lynch — also sexually assaulted her several times. There is a dispute about whether she reported his assaults before 2009. When she became an adult, Lynch stalked her at the bank where she then worked.

In 2010, Lynch was charged with sexual assault of a child and stalking. He made a Shiffra motion to obtain all of the complainant’s counseling records.

Then-Circuit Judge Andrew Bissonnette, applying Shiffra, decided that Lynch had made a sufficient showing to allow the court to conduct an in-camera inspection of the records to learn if they contained any evidence material to a defense against the charges.

The complainant refused to sign a release for her records “unless and until” Bissonnette’s ruling was reviewed. Again relying on Shiffra, Bissonnette barred her from testifying at trial. The state filed a permissive appeal of the order.

Spending by outside groups in the Supreme Court race between Rebecca Bradley and JoAnne Kloppenburg is off to a slow start. That could change quickly with less than a month to go before the election. (File photo by Kevin Harnack)
Spending by outside groups in the Supreme Court race between Rebecca Bradley and JoAnne Kloppenburg is off to a slow start. That could change quickly with less than a month to go before the election. (File photo by Kevin Harnack)

Court of Appeals

The Court of Appeals agreed to review Bissonnette’s non-final Shiffra order. In a well-written, published opinion from the pen of Judge Paul Lundsten, the court applied Shiffra in a detailed, logical manner. It first found that two of the three bases proffered by Lynch were sufficient to justify an in-camera review of the complainant’s mental-health records.

The court also affirmed Bissonnette’s order that she was barred from testifying unless she revisited her refusal to consent to the in-camera inspection.

The case was remanded, but the state filed a petition for review.

Supreme Court

Despite deadlocking on whether to affirm or reverse the Court of Appeals, the Supreme Court didn’t confine itself to its statement: “As a result of a divided court, the law remains as the court of appeals has articulated it.”

Rather, a lead opinion was issued by three justices, a concurrence by one, a concurrence/dissent by two and individual dissents by another two.

Justice Michael Gableman wrote the 57-page lead opinion marshaling an eloquent argument that Shiffra/Green should be overruled. He then undercut his analysis by suggesting a Shiffra amendment to sec. 905.04, the privilege statute.

What is peculiar is that in tone and content, the lead opinion would have reversed the Court of Appeals. Thus, it is inconsistent with the mandate of the case — to let the Court of Appeals’ decision stand. Adding to the confusion, the later dissents contain arguments that are actually consistent with the mandate.

What led to the public quarrelsomeness in this case is Justices Shirley Abrahamson’s and Ann Walsh Bradley’s characterization of this peculiarity. They derided the other justices for “mislabeling” their opinions, referring to this as stepping into the “Twilight Zone.”

This unnecessary and incendiary ridicule prompted responses. As early as Page 2 of the decision, Gableman took it up in a footnote. And Chief Justice Pat Roggensack dealt exclusively with this in her concurrence, accusing the two justices of defamation.

Before their disparaging comments, Abrahamson and Bradley indicated that rather than overrule Shiffra, they would have reversed the remedy portion of the Court of Appeals’ decision barring the complainant’s testimony and instead, under sec. 146.82(2)(a)4, compelled production of the records for in-camera inspection.

The dissents, one by Justice David Prosser and another by Justice Annette Ziegler, argued against the lead opinion’s conclusion that Shiffra should be overruled.

Prosser analyzed Ritchie, the case Shiffra was based on. He also noted that some of the “foundational concerns” with Shiffra could best be dealt with “by further refining and improving the existing Shiffra/Green framework. This will necessarily include the consideration of additional remedies.”

Ziegler also analyzed Ritchie and invoked stare decisis. She concluded her dissent by writing that the public needs certainty, “not what amounts to a collection of several law review articles by the members of this court.” Unfortunately, her dissent is just that.

Commentary

This is the third time in three years that the Supreme Court has been deeply troubled by a Shiffra case. The first two involved the case of the Racine billionaire Samuel Curtis Johnson III, who was charged with sexually assaulting his teenaged stepdaughter.

In the 2013 Johnson I decision, the court stitched together a plurality “affirmance as modified” from fractious points of view. The decision was so startling and enigmatic that both sides requested reconsideration.

The Johnson II decision in 2014, also a short per curiam decision, articulated the fact of their deadlock and allowed the Court of Appeals’ decision to stand as written.

Now in 2016, there is again a stalemate. But instead of a compact per curiam decision, there are 135 pages comprising five opinions, and disagreement as to what to even call each opinion.

Worse, these opinions contain denigrating remarks from the justices about each other.

Three years ago I asked: Are the fractured relationships on the court not only well-known but also so deep and longstanding that they have broken the collective will of the court to seek common ground? Where is Sandra Day O’Connor when we need her?

Now I lament not only the court’s apparent lack of wherewithal to reach consensus, but its indisputable metamorphosis into an uncivil body.

On a positive note, this case contains one of the last opinions of Justice Prosser. His graceful dissent is eminently readable and avoids casting aspersions on his colleagues. He has done himself proud here.

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