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Supreme Court: Reasoning unnecessary in appellate court’s denial of petition for interlocutory appeal

By: Michaela Paukner, [email protected]//March 10, 2021//

Supreme Court: Reasoning unnecessary in appellate court’s denial of petition for interlocutory appeal

By: Michaela Paukner, [email protected]//March 10, 2021//

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A Wisconsin Supreme Court majority has ruled that appellate courts are under no obligation to explain their reasoning for discretionary denials petitions for interlocutory appeal.

The court ruled 4-3 on Wednesday in State v. Anthony James Jendusa. The case asked the state Supreme court to review an appellate court’s denial of a petition for interlocutory appeal and a circuit court’s order to allow a Department of Corrections database to be used for discovery

In 2016, the state petitioned to commit Jendusa as a sexually violent person under Wis. Stat. ch. 980. A DOC psychologist, Dr. Christopher Tyre, testified that Jendusa had met the statutory definition of “sexually violent” and supported his conclusion with three assessments.

On cross-examination, Tyre testified that the DOC maintains a Wisconsin-specific database of people it has evaluated for sexually violent person commitments. However, he said he hadn’t,  in his evaluation of Jendusa, reviewed an email that established a Wisconsin-specific base rate for a person’s likelihood to engage in future acts of sexual violence.

Jendusa moved to have the circuit court order the DOC to disclose its database so an expert could analyze the Wisconsin-specific base rate. He argued that the database is discoverable under Wis. Stat. § 980.036 and viewed it as having possibly exculpatory evidence.

The state disagreed with Jendusa’s interpretation of § 980.036 and argued that disclosing the DOC database could violate state and federal health-privacy laws.

The circuit court ordered the DOC to share the full database with Jendusa so a court-appointed psychologist could analyze it. The court stayed its order pending resolution of the state’s petition for leave to appeal that final non-order. The Court of Appeals denied the state’s petition for interlocutory appeal, stating that it “fails to satisfy the criteria for permissive appeal.”

The state Supreme Court granted review of the denial and the circuit court’s interpretation and application of Wis. Stat. § 980.036.

Majority: Appellate court doesn’t have to explain, DOC database discoverable

Justice Rebecca Bradley was the authoer of the majority opinion and was joined by justices Ann Walsh Bradley, Brian Hagedorn and Jill Karofsky. They reaffirmed the court’s “longstanding and sound practice” of not reviewing the Court of Appeals’ discretionary denial of a petition for interlocutory appeal and made a point of clarifying that the appellate court did not have to explain its decision.

The majority also rejected a request to extend State v. Scott, which requires the court to explain the reasons for its discretionary decisions in order to facilitate judicial review.

“Scott’s rationale is inapposite here,” Dallet wrote. “When the court of appeals denies a petition for interlocutory appeal, there generally is no judicial review to facilitate.”

Regarding the database discovery request, the majority focused on subsection 5 of § 980.036, which says the court may order the production of raw data that are intended to be introduced at trial for testing or analysis.

The majority concluded that the database qualified as raw data and then discussed what it meant to introduce at trial. The state had argued that the subsection didn’t apply in this instance because Jendusa didn’t intend to introduce only the DOC’s raw data.

Dallet’s opinion called that reading of the statute as “overly formalistic” and disregarding of the statute’s context.

“(I)n the ch. 980 context, the only reasonable reading of ‘raw data that is intended to be introduced at the trial’ is that the analysis of the raw data is intended to be introduced,” Dallet wrote.

With that decision, the case goes back to the circuit court for further proceedings consistent with the opinion.

Dissent: Errors with both conclusions

Justice Annette Ziegler, joined by Chief Justice Pat Roggensack and Justice Rebecca Bradley, dissented. Ziegler’s opinion said the majority erred in concluding that the appellate court doesn’t have to explain the denial and the DOC database is discoverable.

“These errors will impact not only this case, but will detrimentally affect our review of the court of appeals in future cases,” Ziegler wrote.

Ziegler said the state Supreme Court must have some explanation of the appellate court’s reasoning, according to State v. Scott. But in this instance, the dissenting opinion argued that the majority “carved out an exception.”

On the issue of discovery, Ziegler said the statutory language makes it clear that a party must intend to introduce the raw data requested at trial. Neither party claimed they would do so, so the dissenting opinion said Jendusa should not be allowed to obtain the DOC database under subsection five.


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