April 10, 2013 – Wisconsin’s State Public Defender office, backed by state prosecutors, successfully attacked a state appeals court decision that required court permission before citing presentence investigation reports (PSI) in appellate briefs.

But a Wisconsin Supreme Court majority (4-3) did not issue the supervisory writ sought by the State Public Defender (SPD) in Office of the State Public Defender v. Court of Appeals, 2013 WI 31 (April 9, 2013), instead invoking other authority to decide the case.

The majority used its “superintending and administrative authority” to rule that parties entitled “to have and keep a copy” of PSI reports under state statute don’t need the 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,” wrote Justice Annette Ziegler.

But the majority also urged counsel “to be abundantly cautious when deciding whether it is necessary to cite sensitive information and when choosing how to cite such content.”

Three justices dissented – Chief Justice Shirley Abrahamson, Justice Ann Walsh Bradley, and Justice David Prosser – arguing the majority’s decision provides inadequate guidance to courts and does not protect those who provide PSI information.

Postconviction Motions Spark Appeal

Defendant Michael Buchanan was convicted on two crimes before Assistant State Public Defender Steven Grunder was appointed as his postconviction lawyer.

Grunder sought permission to cite portions of a PSI report in a postconviction appellate brief, because the appeal was based on sentencing issues. The appeals court allowed it, with restrictions. Then the state asked permission to quote from the PSI report also.

The appeals court denied the state’s motion, and ordered both parties to seek permission from the circuit court to “access, discuss, cite to, or quote from the PSI.” It put Buchanan’s appellate brief under seal pending circuit court review.

The court of appeals also denied Buchanan’s motion for reconsideration, which argued that requiring permission to cite PSI statements violates a defendant’s due process rights because defendants have a right to be sentenced on accurate information.

The SPD petitioned the Wisconsin Supreme Court to for a supervisory writ to vacate the appeals court order that kept the PSI under wraps without circuit court permission. The Wisconsin Department of Justice filed an amicus brief supporting the SPD’s position. 

No Supervisory Writ, but Permission Not Required

A unanimous Wisconsin Supreme Court ruled that the SPD did not meet the requirements for a supervisory writ, “a drastic and extraordinary measure that will not be granted unless the petition meets ‘stringent prerequisites,’” the majority explained.

The court of appeals, represented by State Bar of Wisconsin President-elect Patrick Fiedler, argued against a supervisory writ on several grounds, including the ground that requiring circuit court permission on PSIs does not create extraordinary hardships.

“[E]ven assuming the delay and extra cost of obtaining circuit court permission would cause an ‘extraordinary hardship,’ we conclude that the SPD has not met the criteria to grant a supervisory writ,” Justice Ziegler wrote for the majority.

However, the majority still ruled that in merit appeals, circuit court permission is not required to reference PSI reports in appellate briefs, so long as a party is entitled to keep a copy of the report under the state’s PSI statute, Wis. Stat. section 972.15(4m).

“To be clear, our decision does not grant parties unfettered discretion to reference any and all portions of a PSI; the parties may reference information from a PSI only if it is relevant to an issue on appeal,” Justice Ziegler explained.

The majority – noting that PSI reports may contain data on people providing information about defendants – explained that attorneys are prohibited from using full names in appellate briefs when citing PSI reports, similar to confidentiality rules in juvenile cases.

Finally, the majority explained that appellate counsel can file briefs under seal or ask the appeals court for guidance if unsure whether PSI information can be included. Further, opposing parties can move to strike questionable information that is included.

Dissent 

The majority’s approach does not provide clear guidance on what PSI information can and cannot be cited in appellate briefs, according to three dissenting justices.

The dissent argued that counsel, and perhaps pro se defendants, must rely on their own discretion to determine what information can be included, and that’s not workable.

“The majority’s inadequate guidance on these questions may produce negative consequences for those who have provided information in the PSI and provide inadequate protection from harm,” wrote Justice Bradley.

She noted that PSI’s often contain information that while sensitive and revealing, may not fall into the majority’s classifications of confidential, such as private family matters.

“Individuals may be held up to ridicule as a result of inappropriate use of information in a PSI,” Justice Bradley wrote. “Additionally, the disclosure of such information may put an individual’s life or health in danger, creating safety issues.”

The dissent spelled out a procedural mechanism to determine what parts of a PSI can be revealed, starting on the premise that the entire PSI is confidential by statute. It said parties should be required to get permission to use information that is not public record.