State v. Lynch
| Decision Date | 13 July 2016 |
| Docket Number | No. 2011AP2680–CR.,2011AP2680–CR. |
| Citation | 885 N.W.2d 89 (Mem),371 Wis.2d 1 |
| Parties | STATE of Wisconsin, Plaintiff–Appellant–Petitioner, v. Patrick J. LYNCH, Defendant–Respondent. |
| Court | Wisconsin Supreme Court |
For the plaintiff-appellant-petitioner, the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was Brad D. Schimel, attorney general.
For the defendant-respondent, there was a brief by Robert R. Henak, and the Henak Law Office, S.C., Milwaukee, WI, with whom on the brief was Christopher T. Van Wagner and Christopher T. Van Wagner S.C., Madison, WI. Oral argument by Robert R. Henak.
¶ 2 This case requires us to reexamine State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct.App.1993)modified by State v. Green, 2002 WI 68, 253 Wis.2d 356, 646 N.W.2d 298 (hereinafter Shiffra/Green ). Shiffra/ Green established a process under which a criminal defendant in Wisconsin could obtain an in camera review of a person's privileged4 mental health treatment records. Under Shiffra/Green , a defendant can acquire a complainant's privileged mental health treatment records when he5 demonstrates “a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence....”6 Green, 253 Wis.2d 356, ¶ 19, 646 N.W.2d 298.
¶ 3 In this case, Lynch filed a pretrial motion pursuant to Shiffra/ Green , seeking an in camera inspection of “all psychiatric, psychological, counseling, therapy and clinical records” of the complainant for the treatment she received during the time period 1993–2011. The circuit court granted Lynch's motion for in camera review of the complainant's privileged mental health treatment records and ordered the complainant to sign a release of records. Further, the court informed the complainant that if she refused to turn over her privileged mental health treatment records, her testimony would be “barred at trial.” The complainant refused to give up her privileged mental health treatment records “[u]nless and until” the circuit court's determination was reviewed by another court. As a result, the circuit court barred the complainant from testifying at trial. The State appealed, and the court of appeals affirmed the circuit court's order barring the complainant from testifying at trial. The State appealed.
¶ 4 The State makes three arguments on appeal. First, the State argues that we should overrule Shiffra/Green because it originates from a serious misinterpretation of Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Second, the State argues that, if Shiffra/Green remains, we should clarify that witness preclusion (barring a complainant from testifying at trial) is not the only remedy available to the circuit court when a complainant refuses to waive her privilege. Third, the State argues that a circuit court should be able to use Wis. Stat. § 146.82(2)(a)4. (2013–14)7 to require production of the privileged mental health treatment records even when the complainant refuses to consent to release.
¶ 5 Accordingly, three issues are presented for our review.8 The first is whether we should overrule Shiffra/Green . The second is whether witness preclusion is the only remedy available to the circuit court when a complainant refuses to waive her privilege. The third is whether a circuit court may use Wis. Stat. § 146.82(2)(a)4. to require production of the privileged mental health treatment records when the complainant refuses to consent to release.
¶ 6 These issues, in particular the first and second issues, have divided this court for a number of years. See State v. Johnson, 2013 WI 59, 348 Wis.2d 450, 832 N.W.2d 609 (per curiam) (Johnson I ), reconsideration granted, 2014 WI 16, 353 Wis.2d 119, 846 N.W.2d 1 (per curiam) (Johnson II ). These issues continue to divide this court.
¶ 7 Justice Gableman, joined by Chief Justice Roggensack and Justice R.G. Bradley, would overturn Shiffra/Green . Our reasoning is outlined in this lead opinion.9 Justice Abrahamson and Justice A.W. Bradley would not overturn Shiffra/Green but would interpret Shiffra to allow for additional remedies, including release of the privileged records pursuant to Wis. Stat. § 146.82(2)(a)4. Justice Prosser would not overturn Shiffra/ Green , and though he would consider additional remedies, he would not permit a circuit court to compel release of the complainant's privileged records pursuant to § 146.82(2)(a)4. Finally, Justice Ziegler would not overturn Shiffra/Green and interprets Shiffra to allow for a single remedy (preclusion of the privilege-holder's testimony).
¶ 8 We conclude that Shiffra/Green improperly relied on Ritchie when it invented a right to access privileged information ( a complainant's privileged mental health treatment records) via a motion for in camera review. We further conclude that Shiffra/Green cannot be grounded in any other legal basis, specifically any other constitutional provision. We would, therefore, overrule Shiffra/Green and its progeny. Consequently, we need not address the second and third issues presented for review.10
¶ 9 As a young child, the complainant was repeatedly sexually assaulted by her father. It was during this period of sexual abuse that the complainantsought mental health treatment. Her father was eventually charged and convicted of five counts of first-degree sexual assault of a child.
¶ 10 In the case before us, the complainant alleges that during the same time her father was sexually assaulting her, she was also being sexually assaulted by another—the defendant, Lynch. At the time of the alleged sexual assaults, Lynch was a law enforcement officer and was “good friends” with the complainant's father. According to the complainant, Lynch sexually assaulted her on six or seven occasions in her father's home. The following excerpts taken from the complainant's testimony while she was being questioned by Lynch's attorney at his preliminary hearing reveal the nature of three of the alleged sexual assaults:
The testimony of the complainant reveals that the alleged sexual assaults included forced “fondling,” “oral sex,” and “intercourse.” According to the complainant, all of the sexual assaults took place in a small bathroom (described in the above testimony) next to the kitchen.
¶ 11 The complainant also testified that after her father's trial (which took place a few years after the alleged sexual abuse occurred), Lynch would show up where she worked. The following excerpt, again taken from the complainant's testimony at the defendant's preliminary hearing reveals the nature of the alleged stalking:
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