State v. Polashek

• Decision Date: 26 June 2002
• Docket Number: No. 00-1570-CR.,00-1570-CR.
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. David C. POLASHEK, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

253 Wis.2d 527

2002 WI 74

646 N.W.2d 330

STATE of Wisconsin, Plaintiff-Appellant,¹ v. David C. POLASHEK, Defendant-Respondent-Petitioner.

No. 00-1570-CR.

Supreme Court of Wisconsin.

Oral argument April 10, 2002.

Decided June 26, 2002.

For the defendant-respondent-petitioner there was a brief by Nila Jean Robinson and Robinson, Peterson, Berk & Cross, S.C., Appleton, and oral argument by Nila Jean Robinson.

For the plaintiff-appellant the cause was argued by Sandra L. Nowack, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

An amicus curiae brief was filed by Thomas R. Schrimpf, Charles David Schmidt and Hinshaw & Culbertson, Milwaukee, on behalf of the Wisconsin Association of School District Administrators. An amicus curiae brief was filed by Teresa M. Elguézabal and Rebecca L. Ferber on behalf of the Wisconsin Education Association Council.

¶ 1. JON P. WILCOX, J.

In this case we review a published decision of the court of appeals, State v. Polashek, 2001 WI App 130, 246 Wis. 2d 627, 630 N.W.2d 545. In that case, the court of appeals interpreted several requirements for a prosecution under Wis. Stat. § 48.981(7) (1999-2000),² the statute that provides a criminal penalty for the unauthorized disclosure of confidential information relating to reports of suspected child abuse or neglect. The court of appeals held that when the State charges a defendant with a violation of § 48.981(7), the State is not required to prove that the recipient of the confidential information³ had no prior knowledge of the information, and the State is not required to prove the defendant's mental state because § 48.981(7) creates a strict liability offense. We disagree with the court of appeals on the first issue, but agree with the court of appeals on the second issue.

¶ 2. David C. Polashek was charged with a violation of § 48.981(7). Before trial, Polashek offered a jury instruction, which stated that to prove that the defendant "disclosed" the confidential information, the State must show that the recipient did not know the confidential information at the time the information was conveyed. The proposed jury instructions further provided that the State would be required to prove that the disclosure was intentional. The Oconto County Circuit Court, Larry L. Jeske, Judge, accepted Polashek's proposed instructions.

¶ 3. The State was granted leave for an interlocutory appeal, and the court of appeals reversed the circuit court's decision. We accepted Polashek's petition for review, and we now affirm the holding of the court of appeals in part, and reverse in part. First, we hold that the term "disclose" in § 48.981(7) requires that the recipient not have knowledge of the information communicated. However, we agree with the court of appeals that the statute creates a strict liability offense. We thus remand the case to the trial court for further proceedings consistent with this opinion.

I⁴

¶ 4. In March 1999, Reporter⁵ A noticed a mark on a student's forehead, and suspected it was the result of child abuse. Reporter A removed the student from the classroom and informed Reporter B, who was a required reporter of suspected child abuse under Wis. Stat. § 48.981(2). Reporter B then notified the Oconto County Department of Human Services about the suspected abuse. A social worker arrived, spoke with the student, and apparently determined that abuse was unlikely.

¶ 5. The student's parents, upset with the handling of the incident, met with the student's teacher and then with the school principal. Finally, the parents met with Polashek, who is the superintendent of the Oconto Falls Area School District. After the parents met with Polashek, Polashek met with Reporter A and Reporter B to discuss the incident. Following that meeting, Polashek wrote a letter to the student's parents, explaining the situation; copies of the letter were mailed to Reporter A and Reporter B. In the text of the letter, Polashek allegedly used the names of Reporter A and Reporter B.

¶ 6. A criminal complaint was filed against Polashek, alleging that, by including the names of the reporters in the letter, Polashek violated Wis. Stat. § 48.981(7)(e) and (f).⁶ Polashek pleaded not guilty to the charge and requested a jury trial.

¶ 7. Because there are no model jury instructions for a charge of violating § 48.981(7), Polashek and the State each submitted proposed jury instructions on the elements of the crime. After a series of amendments, the court accepted Polashek's proposed instructions. Those instructions, with respect to the third element of the crime, read:

The third element requires that David Polashek communicated the identity of the reporter [to the parents] so as to disclose that identity. Before you may find that Mr. Polashek disclosed the identity of a reporter, you must find that he exposed to view, or revealed, information of identity which was previously secret or unknown [to the parents]. It is not sufficient that the information was merely repeated; you should not find David Polashek guilty unless you find that he laid bare information which was previously unknown or secret [to the parents].

The State objected to the instruction on this element, arguing that it should not be required to prove that the identity of the reporter was unknown to the recipient before Polashek's disclosure. The State sought permission to appeal the order, and the court of appeals granted the request.

¶ 8. In a published decision, State v. Polashek, 2001 WI App 130, the court of appeals reversed the circuit court's order. The court of appeals concluded that the term "disclose" was ambiguous, but looked to the legislative history and the purpose of the statute to determine that the recipient's prior knowledge did not alter the fact that a disclosure was made. The court of appeals thus held that the term "disclose" does not require that the State prove that the confidential information was unknown to the recipient of the information, and further held that the defendant's proposed jury instruction was inappropriate.

¶ 9. Although the State did not object to the proposed instruction in the trial court, it also challenged the fourth element of Polashek's proposed jury instructions on appeal. That instruction would have required that the State prove that the defendant intentionally disclosed the confidential information. The court of appeals chose to address this question pursuant to Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 577 N.W.2d 23 (1998), and held that § 48.981 is a strict liability statute.

¶ 10. Polashek petitioned this court for review on both issues, and we accepted. On review, we disagree with the court of appeals' interpretation of "disclose." Rather, we hold that information cannot be "disclosed" to a recipient who already knows the information communicated. However, we agree with the court of appeals that § 48.981(7) creates a strict liability offense. We therefore affirm the holding of the court of appeals in part, reverse the holding in part, and remand the case to the circuit court for further proceedings consistent with this opinion.

II

[1]

¶ 11. We begin by briefly addressing the question of timeliness. Polashek claims that the State's appeal in this case was untimely because it was not made within the prescribed statutory time limits and that the State therefore waived its right to appeal the non-final order. We disagree.

¶ 12. After the initial submission of the proposed jury instructions, and several amendments to the instructions, the circuit court sent a letter to each of the parties. The letter, which was filed on March 9, 2000, stated that the court was "not satisfied with either [jury] instruction," but felt that Polashek's proposed instruction was "closer to the mark." The letter went on to state that if either party wished to provide further jury instructions, the court would consider them, but that the court was convinced that "the information transmitted must have been previously unknown to the recipient." The letter was signed by Judge Jeske.

¶ 13. On June 2, 2000, the State filed a motion with the circuit court, asking for an immediate ruling on which substantive jury instruction the court intended to use. The court issued an order on June 6, 2000, stating that it intended to use the instructions attached to the order. These attachments included Polashek's proposed instructions—the ones currently under dispute. The order was dated nunc pro tunc, March 9, 2000. The State appealed this order.

¶ 14. Polashek contends that the original letter constituted the order from which the State should have appealed. Citing Fredrick v. City of Janesville, 92 Wis. 2d 685, 285 N.W.2d 655 (1979), and Orth v. Ameritrade, Inc., 187 Wis. 2d 162, 522 N.W.2d 30 (Ct. App. 1994), Polashek argues that the letter did not contemplate further action by the court, and therefore constituted an order for the purposes of Wis. Stat. § 808.03(2).

[2, 3]

¶ 15. We disagree with Polashek for two reasons. First, the letter was simply not an order from a circuit court. As Polashek himself notes, in Fredrick we held that the test of "finality" is "not what later happened in the case but rather, whether the trial court contemplated the document to be a final judgment or order at the time it was entered." Fredrick, 92 Wis. 2d at 688. Here, the plain text of the circuit court's letter anticipated that there could be further amendments to the jury instructions, undercutting the conclusion that the letter constituted a final order. And even though the June 6th order was labeled "nunc pro tunc," that authority could not create a retroactive order where none previously existed. We agree with the decision in State v. Jeffrie C.B., 218 Wis. 2d 145, 150, 579 N.W.2d 69 (Ct. App. 1998), where the court of appeals stated, "`A court cannot modify or amend its judgment to make it conform to what the court ought to have or...