State v. Johnson, 2011AP2864–CRAC.

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: PER CURIAM.
• Citation: 348 Wis.2d 450,2013 WI 59,832 N.W.2d 609
• Parties: STATE of Wisconsin, Plaintiff–Appellant–Cross–Respondent–Petitioner, v. Samuel Curtis JOHNSON, III, Defendant–Respondent–Cross–Appellant.
• Docket Number: No. 2011AP2864–CRAC.,2011AP2864–CRAC.
• Decision Date: 03 July 2013

348 Wis.2d 450
832 N.W.2d 609
2013 WI 59

STATE of Wisconsin, Plaintiff–Appellant–Cross–Respondent–Petitioner,^†
v.
Samuel Curtis JOHNSON, III, Defendant–Respondent–Cross–Appellant. ^††

No. 2011AP2864–CRAC.

Supreme Court of Wisconsin.

Argued Feb. 25, 2013.
Decided July 3, 2013.

For the plaintiff-appellant-cross-respondent-petitioner, the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-respondent-cross-appellant, there was a brief by Michael F. Hart, Craig S. Powell, Geoffrey R. Misfeldt, and Kohler & Hart, S.C., Milwaukee, and Mark D. Richards and Richards & Hall, S.C., Racine, and Stephen J. Meyer and Meyer Law, Madison. The cause was argued by Mark D. Richards.

An amicus curiae brief was filed by Kathleen Quinn, Milwaukee, on behalf of T.S.

An amicus curiae brief was filed by Eric J. Wilson and Dustin B. Brown and Godfrey & Kahn, S.C., Madison, on behalf of

[832 N.W.2d 610]

the Wisconsin Coalition Against Sexual Assault.

PER CURIAM.

[348 Wis.2d 451]¶ 1 This is a review of an unpublished opinion of the court of appeals that affirmed in part and reversed in part an order of the circuit court.¹ Three issues are presented for review:

[348 Wis.2d 452][1] ¶ 2 First, should State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct.App.1993), be overruled because its holding rests on an erroneous premise that Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) mandates the pretrial in camera review of privately-held, privileged records? A majority of the court would not overrule Shiffra. Chief Justice Abrahamson, Justice Bradley, Justice Crooks, and Justice Ziegler conclude that Shiffra should not be overruled, observing that this court has reaffirmed or applied Shiffra in a number of cases.² JUSTICE ROGGENSACK concluDes that shiffra should not be applied to mental health records that are privately held and privileged.

¶ 3 Second, if Shiffra is not overruled, has the defendant met his burden under State v. Green, 2002 WI 68, 253 Wis.2d 356, 646 N.W.2d 298, to make an initial showing of materiality entitling him to an in camera review of the privately-held records? A majority of the court concludes that he has met the requisite burden to make an initial showing of materiality. Chief Justice Abrahamson, Justice Bradley, and Justice Crooks conclude that the defendant has satisfied his burden under Green. Justice Roggensack and Justice Ziegler conclude that the defendant has not satisfied his burden.

¶ 4 Third, if Shiffra is not overruled, may the circuit court require production of the privately-held, privileged mental health records in this case for in [348 Wis.2d 453]camera review when the 17–year–old privilege-holder refuses to consent to their release? Chief Justice Abrahamson and Justice Bradley agree with Judge Brown's dissent in the present case at the court of appeals that the circuit court may require production of the records for...