State v. Johnson
| Decision Date | 29 October 2020 |
| Docket Number | Appeal No. 2019AP664-CR |
| Citation | 951 N.W.2d 616,2020 WI App 73,394 Wis.2d 807 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, T.A.J., Appellant, v. Alan S. JOHNSON, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the appellant, the cause was submitted on the briefs of Andrea K. Rufo of Legal Action of Wisconsin, Inc., Racine.
On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Sarah L. Burgundy, assistant attorney general, and Joshua L. Kaul, attorney general.
On behalf of the defendant-respondent, the cause was submitted on the briefs of Nathan J. Wojan of Petit & Dommershausen, S.C., Menasha.
A nonparty brief was filed by Ellen Henak and Robert R. Henak of Henak Law Office, S.C., Milwaukee, for Counsel for Wisconsin Association of Criminal Defense Lawyers.
Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.
¶1 Alan Johnson is charged with multiple crimes stemming from Johnson's alleged sexual assault of T.1 T. appeals an order of the Waupaca County Circuit Court which determined that T. does not have standing in this criminal case to oppose a motion brought by Johnson, as yet undecided by the circuit court, requesting an in camera review by the circuit court of T.'s health care records for potential release to the parties for use at trial.2 In deciding that T. does not have standing to address this issue with the court, the circuit court relied on this court's holding in Jessica J.L. v. State , 223 Wis. 2d 622, 589 N.W.2d 660 (Ct. App. 1998). We reverse the order of the circuit court because we conclude that: (1) a recent amendment to the Wisconsin Constitution regarding the rights of crime victims grants a crime victim such as T. standing to oppose, and to be heard regarding his or her opposition to, a defendant's motion for an in camera review of the victim's health care records and, therefore, abrogates the pertinent holding in Jessica J.L. ; (2) this grant in the recent constitutional amendment applies retrospectively to T.'s request for standing to oppose, and to be heard regarding his opposition to, Johnson's pending motion for an in camera review of T.'s health care records.
¶2 The material facts are not in dispute. Johnson is charged with multiple criminal offenses stemming from alleged sexual assaults of T. Johnson filed in the circuit court a motion for the court to conduct an in camera inspection of T.'s health care records in order to determine whether those should be shared with the parties.3 Johnson's motion is commonly referred to as a Shiffra - Green motion.
¶3 We pause to summarize pertinent discussion in Shiffra and Green . State v. Shiffra , 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green , 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, established a judicial process by which a criminal defendant may trigger an in camera review by the circuit court of an alleged victim's health care records in order for the court to determine whether any records should be released to the parties for potential use at trial. See Shiffra , 175 Wis. 2d at 608, 499 N.W.2d 719 ; Green , 253 Wis. 2d 356, ¶32, 646 N.W.2d 298. In Shiffra , this court stated that a defendant may trigger an in camera inspection of an alleged victim's health care records by making a preliminary showing that the records are material to the defense. Shiffra , 175 Wis. 2d at 608, 499 N.W.2d 719. In Green , our supreme court clarified that the preliminary showing of materiality requires that the defendant "show a ‘reasonable likelihood’ that the records will be necessary to a determination of guilt or innocence." Green , 253 Wis. 2d 356, ¶32, 646 N.W.2d 298 (quoted source omitted). The supreme court further stated in Green that the preliminary showing must be "fact-specific ... describing as precisely as possible the information sought from the records and how it is relevant to and supports his or her particular defense." Id. , ¶33. If a defendant makes a sufficient showing, the circuit court must review the health care records in camera to determine whether the records "have any independent probative value." Shiffra , 175 Wis. 2d at 611, 499 N.W.2d 719. However, an alleged victim may refuse to release his or her health care records for the in camera review. See, e.g. , id. at 612, 499 N.W.2d 719 ; see also WIS. STAT. § 146.82(1). If the victim refuses, his or her testimony is suppressed in order to protect the defendant's right to a fair trial. See Shiffra , 175 Wis. 2d at 612, 499 N.W.2d 719.
¶4 The issue in this appeal is not whether T. may refuse to disclose his health care records for an in camera review. Rather, T. asserts that he has standing in this criminal case in the circuit court to oppose the motion, and to argue that Johnson has failed in his motion to make a sufficient showing to obtain the in camera review.
¶5 The State did not take a position in the circuit court opposing Johnson's Shiffra - Green motion. T. retained counsel and filed a pleading in the circuit court arguing that Johnson's Shiffra - Green motion should be denied because, according to T., Johnson's motion fails to meet the requirements to obtain an in camera review of his health care records. As part of this pleading, T. took the position that he has standing to oppose Johnson's Shiffra - Green motion, and such standing allows T. to make arguments in court and in writing opposing that motion. Johnson challenged T.'s standing to oppose Johnson's Shiffra - Green motion. The State took no position in the circuit court on whether T. has standing in these circumstances.
¶6 The circuit court determined that T. does not have standing to oppose, or to make arguments to the court regarding his opposition to, Johnson's Shiffra - Green motion. The circuit court relied on this court's holding in Jessica J.L. that an alleged victim does not have standing to object to, or make arguments to the court regarding, a defendant's Shiffra - Green motion. See Jessica J.L. , 223 Wis. 2d at 625-26, 589 N.W.2d 660. The circuit court also concluded that our holding regarding standing in Jessica J.L. has not been abrogated by any Wisconsin Statute enacted subsequent to issuance of our opinion in Jessica J.L. As noted, T. petitioned this court for leave to appeal the circuit court's nonfinal order, and we granted the petition.4
¶7 After briefing was completed by the parties to this appeal,5 a majority of Wisconsin voters in the April 2020 election voted in favor of a constitutional amendment sometimes known as "Marsy's Law" (which we will refer to as the "2020 constitutional amendment").6 The 2020 constitutional amendment alters article I, section 9m(2)(n) of the Wisconsin Constitution by setting forth rights of crime victims, authorizing victims to assert those rights in court in some circumstances, and affording remedies for violations of those rights. See https://docs.legis.wisconsin.gov/misc/lrb/reading_the_constitution/crime_victims_rights_amendment_5_1.pdf (last visited Oct. 23, 2020).
¶8 We invited supplemental briefing from the parties to this appeal on several issues related to the passage of the 2020 constitutional amendment.7
¶9 T. and the State argue that the circuit court erred in concluding that T. does not have standing to oppose, and to make arguments to the circuit court regarding his opposition to, Johnson's Shiffra - Green motion based on the holding of Jessica J.L. According to T. and the State, that holding has been abrogated by subsequent authorities.
¶10 T. argues that the 2020 constitutional amendment does not apply to his standing or his substantive position opposing Johnson's pending Shiffra - Green motion, and that Wisconsin law "requires this Court to decide this case" based on the non-2020 amendment-related arguments that the parties to this appeal made to this court in their "original briefs." Specifically, T. contends that the holding concerning standing in Jessica J.L. has been abrogated by case law and statutes enacted subsequent to the Jessica J.L. opinion but prior to passage of the 2020 constitutional amendment.
¶11 The State argues that the 2020 constitutional amendment grants crime victims standing to oppose, and to make arguments to the court regarding their opposition to, a defendant's Shiffra - Green motion, and also that the amendment applies to current and future crime victims, including in cases such as this one, "in which the litigation commenced before the effective date [of the constitutional amendment]."8
¶12 Johnson relies on the pertinent holding in Jessica J.L. He contends that no other authorities, including the 2020 constitutional amendment, abrogate the holding of Jessica J.L.
¶13 For the following reasons, we conclude that the 2020 constitutional amendment grants crime victims such as T. standing to oppose, and to make arguments supporting their opposition to, a defendant's Shiffra - Green motion and, therefore, abrogates the holding regarding standing in Jessica J.L. We also conclude that this grant in the 2020 constitutional amendment applies retrospectively to T.'s request for standing to oppose, and to make arguments to the court regarding his opposition to, Johnson's Shiffra - Green motion.9
¶14 We begin our analysis by discussing, for context, two preliminary matters. The first is the holding of Jessica J.L. regarding standing of alleged crime victims to oppose a Shiffra - Green motion. The second concerns the effective date, and terms, of the 2020 constitutional amendment.
¶15 To repeat, in Jessica J.L. , we concluded that an alleged victim does not have standing to object to a defendant's Shiffra - Green motion requesting an in camera review by the circuit court of the alleged victim's health care records for potential release to the parties for use at trial. See Jessica J.L. , 223 Wis. 2d at 626,...
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