Office of the State Pub. Defender v. Court Appeals (In re Buchanan)

• Decision Date: 09 April 2013
• Docket Number: No. 2012AP544–W.,2012AP544–W.
• Citation: 346 Wis.2d 735,828 N.W.2d 847,2013 WI 31
• Parties: In the Matter of STATE v. Michael B. BUCHANAN, 2011AP1997–CR (L.C. No. 2009CF113): State of Wisconsin ex rel. Office of the State Public Defender, Petitioner, v. Court of Appeals, District IV and the Honorable Paul Lundsten, presiding, Respondents.
• Court: Wisconsin Supreme Court

346 Wis.2d 735

828 N.W.2d 847

2013 WI 31

In the Matter of STATE

v.Michael B. BUCHANAN, 2011AP1997–CR (L.C. No. 2009CF113):

State of Wisconsin ex rel. Office of the State Public Defender, Petitioner,

v.Court of Appeals, District IV and the Honorable Paul Lundsten, presiding, Respondents.

No. 2012AP544–W.

Supreme Court of Wisconsin.

Argued Nov. 5, 2012.

Decided April 9, 2013.

For the petitioner, there were briefs by Joseph N. Ehmann, first assistant state public defender, and Kelli S. Thompson, state public defender, and oral argument by Joseph N. Ehmann.

For the respondents, there was a brief by Patrick J. Fiedler and Tyler Wilkinson, and Axley Brynelson, LLP, Madison, and oral argument by Patrick J. Fiedler.

An amicus curiae brief was filed on behalf of the State of Wisconsin by Marguerite M. Moeller, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

PETITION FOR SUPERVISORY WRIT BEFORE THE SUPREME COURT

ANNETTE KINGSLAND ZIEGLER, J.

[346 Wis.2d 739]¶ 1 This is a review of an order of the court of appeals ¹ that required defense counsel to seek permission from the circuit court in order to reference information from a presentence investigation report (PSI) in an appellate brief.

¶ 2 Assistant State Public Defender Steven Grunder (Grunder) was appointed as postconviction counsel for Michael Buchanan (Buchanan). Grunder, on Buchanan's behalf, filed a motion with the court of appeals seeking permission to use, cite to, and quote from ² Buchanan's PSI in his appellate brief. The court of appeals granted the motion. The State, in turn, filed a motion seeking the same permission to use, cite to, and quote from the PSI for its own appellate brief. The State's motion stated that it had been the attorney general's practice to seek the circuit court's permission to cite a PSI in an appellate brief following State v. Parent, 2006 WI 132, 298 Wis.2d 63, 725 N.W.2d 915. The court of appeals then issued an order that placed under seal all copies of Buchanan's brief, directed the parties to move the circuit court for permission to cite the PSI, and denied the State's motion to the court of appeals for permission to cite the PSI. The State Public Defender (SPD) petitioned this court to issue a supervisory writ vacating the court of appeals' order and clarifying that the parties in Buchanan's case need not ask permission of any court before citing the PSI in their appellate briefs. Uniquely, the State filed an amicus brief agreeing with the SPD.

¶ 3 We conclude that the SPD has not met the requirements for issuance of a supervisory writ. However, pursuant to our superintending and administrative authority, we conclude that in a merit appeal, parties who are entitled “to have and keep a copy” of a PSI pursuant to Wis. Stat. § 972.15(4m) (2009–10) ³ need not ask any court's permission to reference a PSI in an appellate brief. Parties may reference information from the PSI that does not reveal confidential information and that is relevant to the appeal. 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.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 4 In 2010, Buchanan pled no contest to two crimes. The circuit court sentenced Buchanan, and he filed a notice of intent to pursue postconviction relief. The SPD assigned Attorney Grunder to represent Buchanan. On November 22, 2011, Buchanan's counsel filed a motion with the court of appeals seeking permission to cite “the portions of the PSI relevant to the defendant's appeal.” The motion stated that Buchanan's appeal was focused on sentencing issues, that it was necessary to cite the PSI to develop Buchanan's appellate claims, and that the portions of the PSI that Buchanan sought to use contained no confidential information.On November 30, 2011, the court of appeals issued an order granting the motion. The order allowed Buchanan to “quote sparingly” from the PSI but directed him not to use the initials or, by extension, the names of any individuals identified in the PSI. Buchanan then filed the appellate brief.

¶ 5 On January 4, 2012, a motion was filed on the State's behalf seeking the same permission to “quote from the PSI, subject to the same constraints” for the purposes of its own appellate brief. The State's motion stated that to fully respond to Buchanan's appellate brief, it needed permission to cite the PSI. The motion noted that following Parent, it has been the practice of the attorney general's office to seek permission from the circuit court to cite a PSI in an appellate brief.

¶ 6 On February 13, 2012, the court of appeals issued an order that, inter alia, placed under seal all copies of Buchanan's brief, directed the parties to move the circuit court for permission to “access, discuss, cite to, or quote from the PSI,” and denied the State's motion to the court of appeals for permission to cite the PSI. The court of appeals reasoned that “Parent makes clear that the circuit court, and not this court, is the proper tribunal to preside over motions requesting access to and disclosure of the contents of PSI reports.”

¶ 7 On February 24, 2012, Buchanan filed a motion for reconsideration in the court of appeals. Buchanan argued that a defendant has a right to deny or explain statements in the PSI, which could be violated if he or she is required to obtain circuit court permission to use the PSI. Further, Buchanan argued that Parent is limited to no-merit appeals and that the confidentiality requirement of Wis. Stat. § 972.15(4) and (4m) is met by compliance with Wis. Stat. § (Rule) 809.81(8) (“Every ... document that is filed in the court and that is required by law to be confidential shall refer to individuals only by their first name and the first initial of their last name.”).

¶ 8 On March 2, 2012, the court of appeals denied Buchanan's motion for reconsideration.

¶ 9 On March 14, 2012, the SPD petitioned this court for a supervisory writ. The petition asks this court to vacate the court of appeals' order that required the parties to move the circuit court for permission to “access, discuss, cite to, or quote from the PSI.” The SPD, and the State as an amicus, asks this court to rule that parties who are entitled “to have and keep a copy” of a PSI need not ask any court's permission to cite to or quote from a PSI in an appellate brief, subject to the confidentiality requirement of Wis. Stat. § 972.15(4)—(4m).

¶ 10 On June 13, 2012, we accepted the case for full briefing and argument.

II. STANDARD OF REVIEW

¶ 11 The first question presented is whether this court should issue a supervisory writ vacating the court of appeals' order. As the court of original jurisdiction, we have discretion to issue a supervisory writ. SeeWis. Const. art. VII, § 3; Wis. Stat. § 751.07; State ex rel. Dressler v. Circuit Court for Racine Cnty., 163 Wis.2d 622, 630, 472 N.W.2d 532 (Ct.App.1991). However, a supervisory writ is a drastic and extraordinary remedy that will not be granted unless the petition meets “stringent prerequisites.” State ex rel. Lynch v. County Court, Branch III, 82 Wis.2d 454, 459, 262 N.W.2d 773 (1978).

[346 Wis.2d 743] ¶ 12 The second question presented is whether parties who are entitled “to have and keep a copy” of a PSI pursuant to Wis. Stat. § 972.15(4m) need any court's permission to reference a PSI in an appellate brief. This question requires us to interpret § 972.15. Interpretation of a statute is a question of law that this court reviews de novo while benefitting from the analyses of the lower courts. See State v. Ziegler, 2012 WI 73, ¶ 37, 342 Wis.2d 256, 816 N.W.2d 238.

III. ANALYSIS

A. Supervisory Writ

¶ 13 We conclude that the SPD has not met the requirements for issuance of a supervisory writ. However, pursuant to our superintending and administrative authority, we nonetheless consider the second question presented.

¶ 14 “A supervisory writ is an extraordinary remedy to prevent a court from refusing to perform, or from violating, its plain duty.” Madison Metro. Sch. Dist. v. Circuit Court for Dane Cnty., 2011 WI 72, ¶ 33, 336 Wis.2d 95, 800 N.W.2d 442 (citing Dressler, 163 Wis.2d at 630, 472 N.W.2d 532). A petition for a supervisory writ will not be issued unless:

(1) an appeal is an utterly inadequate remedy; (2) the duty of the [ ] court is plain; (3) its refusal to act within the line of such duty or its intent to act in violation of such duty is clear; (4) the results of the [ ] court's action must not only be prejudicial but must involve extraordinary hardship; and, (5) the request for relief was made promptly and speedily.

Id., ¶ 77 (quoting Dressler, 163 Wis.2d at 630, 472 N.W.2d 532).

[346 Wis.2d 744]¶ 15 The parties agree on the first prong, that an appeal would be an inadequate remedy, and on the fifth prong, that the SPD's request for relief was made promptly and speedily. The SPD argues that under Wis. Stat. § 972.15, the court of appeals had a plain duty to accept Buchanan's brief as filed and its refusal to accept Buchanan's brief was clear. Further, the SPD argues that requiring it to seek circuit court permission to cite a PSI would be an extraordinary hardship because it may violate a defendant's due process right to appeal and would be too costly for the SPD. The court of appeals argues that it did not violate a plain duty when it ordered Buchanan to seek circuit court permission to cite his PSI. The court of appeals further argues that it would not be an extraordinary hardship for the SPD to seek circuit court permission to cite a PSI.

¶ 16 The standard for “extraordinary hardship” has been met in few cases. For example, in Madison Metropolitan, after a school district expelled a student, the circuit court issued an order requiring the district to provide appropriate educational resources to the student. 336 Wis.2d 95, ¶ 22, 800 N.W.2d 442. This court affirmed the court of appeals'...