July 19, 2016 – A majority of Wisconsin Supreme Court justices could not agree on whether a victim alleging sexual assault should be barred from testifying if she refuses to release her mental health treatment records for in camera inspection, or whether criminal defendants are even entitled to request the records in the first place.

Thus, lower appeals court rulings apply. Those decisions mean victims who refuse to release medical treatment records requested for in camera inspection (in judge’s chambers) cannot testify. It wasn’t the first time the court was divided on this issue.

In 2014, the court issued a per curiam opinion, noting divided opinions on whether a defendant was entitled to request in camera inspection, or whether the only sanction for a victim’s refusal to release them was the inability to testify at trial. But two justices did not participate. Without a majority, rulings from the appeals court controlled.

In the most recent case, a woman accused Patrick Lynch of sexually assaulting her during the same time period that her father was sexually assaulting her as a child.

Lynch, a law enforcement officer at the time, was her father’s friend. During that time, the victim alleging sexual abuse sought mental health treatment.

Years later, the state filed a criminal complaint against Lynch, who subsequently filed a motion for in camera inspection of “all psychiatric, psychological, counseling, therapy and clinical records” for treatment the accuser received for the 18-year period between 1993 and 2011. The circuit court granted the motion.

The judge in Dodge County ordered the alleged victim to sign a release of medical treatment records. The court also ruled that if she refused, her testimony would be barred at trial. The alleged victim refused and the state appealed the court’s decision.

An appeals court affirmed the circuit court. The state appealed to the supreme court, arguing that prior case law should be overruled and the victim should be able to testify even if she refuses to release the privileged treatment records.

But in State v. Lynch, 2016 WI 66 (July 13, 2016), the Wisconsin Supreme Court could not agree, again, on the proper resolution. “As a result of a divided court, the law remains as the court of appeals has articulated it,” the court announced in its decision.

Justice Michael Gableman noted that five justices would reverse the court of appeals decision, “in whole or in part,” but “no more than three Justices can agree on the same rationale or result.” Thus, the appeals court decision in Lynch is controlling.

The appeals court in Lynch explained that it was bound by a 1993 appeals court decision – State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and subsequent decisions relying on it – which determined that mental health treatment records could be open for “in camera” review if there’s a “reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence.”

“[U]nder Shiffra, the only available remedy when a victim refuses to disclose records for an in camera review is the exclusion of the victim’s testimony at trial,” Judge Paul Lundsten wrote for a three judge-panel in State v. Lynch, 2015 WI App 2.

“There may be merit to the idea that, in some circumstances, other alternatives should be available to circuit courts,” Lundsten wrote. “However, we agree with the circuit court that we are bound by plain language in Shiffra that forecloses alternative remedies.”

A Court Divided

In a lead opinion, Justice Gableman noted three issues: 1) whether Shiffra and a subsequent case should be overturned; 2) whether barring testimony for refusing to release treatment records is the only remedy; and 3) whether the court can compel release, under Wis. Stat. section 146.82(2)(a)4, if the individual refuses to release them.

Justice Gableman, as well as Chief Justice Patience Roggensack and Justice Rebecca Bradley, would have overturned Shiffra, concluding that Shiffra and a 2002 case, State v. Green, improperly invented a right to access privileged information. Thus, it did not address the second and third issues, although other justices did.

“[W]e conclude that Lynch has no right to access privileged information via a motion for in camera review,” Gableman wrote. “Simply put, no constitutional provision affords him such a right. Moreover, even if Lynch had a right, his right would not automatically trump the privilege statute,” which creates a privilege to refuse disclosure of medical records.

Justice David Prosser dissented. He would not overrule Shiffra and Green. “[T]he court would be better served by focusing on and trying to address each of these concerns by further refining and improving the existing Shiffra/Green framework,” Justice Prosser wrote. “This will necessarily include consideration of additional remedies,” but he did not favor compelled disclosure under section 146.82(2)(a)4.

Justice Annette Ziegler also dissented. Like Justice Prosser, Justice Ziegler voted to reaffirm the Shiffra/Green framework and affirm the lower appeals court, which precludes the privilege-holder’s testimony for refusing to release medical records. That is, she would use preclusion of testimony as the only remedy for refusal.

“We should tread lightly in this complex area of the law, upsetting precedent only when compelled to do so by some ‘special justification,’” she wrote.

Justices Shirley Abrahamson and Ann Walsh Bradley co-authored an opinion, dissenting in part and concurring in part.  They would adhere to Shiffra and Green, allowing a defendant to request in camera review of privileged mental health records in some circumstances, but also allowing the victim to refuse to release them.

“However, we would reverse that part of the court of appeals’ decision that concluded that exclusion of the complainant’s testimony is the only available remedy when the complainant refuses to disclose the requested privileged mental health treatment records," they wrote. They would allow compelled release under section 146.82(2)(a)4, if constitutional concerns trumped the physician-patient privilege.

They were also confused by use of a “lead opinion” and how the other writings were labeled. “Three separate writings (Justice Ziegler's, Justice Prosser's, and ours) concur (at least in part) in the result and with the decision of the court of appeals,” they wrote.

“But for some unstated reason, both Justice Prosser's and Justice Ziegler's writings are labeled (and referred to in the ‘lead opinion’) as ‘dissents.’ By failing to acknowledge the real positions of the justices, we are, in the words of Rod Serling, the creator of The Twilight Zone, ‘traveling through another dimension . . . into a . . . land whose [only] boundaries are that of imagination.’”

Abrahamson and A.W. Bradley said the court should have issued a per curiam opinion, not a “lead opinion,” and failing to do so “raises the potential for significant confusion.”

“These issues should be approached by the court and the justices in a descriptive, analytical, and historical manner, free from divisiveness or offensive posturing, personal attacks, and false accusations,” Justices Abrahamson and A.W. Bradley wrote.

“Engaging in or responding to such personal attacks and accusations neither sheds light on the inquiry before us nor promotes public trust and confidence in the court.”

But Justice Patience Roggensack wrote a two-page concurring opinion admonishing Abrahamson and Justice A.W. Bradley for what she viewed as personal attacks against others. The chief justice said their joint opinion “attempts to demean the writings of other justices” and “may evidence a pattern of joint writing that is bottomed in a desire to injure rather than to inform.” She called it “defamatory labeling.”

“Justice Abrahamson and Justice A.W. Bradley characterize [the other justices’] writings as ‘The Twilight Zone and the court’s imaginative zone,’” Chief Justice Roggensack wrote. “This defamatory labeling of colleagues’ writings does not address the legal issues the parties asked us to review.”

She said the press will seize upon the language and report it over and over again. “[They] know what the press will do,” she wrote. “They even cite the 1959 television program to aid the press in reporting their comments.”

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