State v. Patrick J. Lynch

2016 WI 66

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2680-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Patrick J. Lynch,
Defendant-Respondent.

REVIEW OF A DECISION BY THE COURT OF APPEALS
(Reported at 359 Wis. 2d 482, 859 N.W.2d 125)
(Ct. App. 2014 – Published)
PDC No: 2015 WI App 2

OPINION FILED: July 13, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 12, 2015

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dodge
JUDGE: Andrew P. Bissonette

JUSTICES:
CONCURRED: ROGGENSACK, C. J. concurs (Opinion filed).
CONCURRED/DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. concur
and dissent (Co-authored opinion filed).
DISSENTED: PROSSER, J. dissents (Opinion filed).
ZIEGLER, J. dissents (Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:
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 of the Henak Law Office, S.C., Milwaukee, WI, with whom
on the brief was Ellen Henak and Christopher T. Van Wagner of
Christopher T. Van Wagner S.C., Madison, WI. Oral argument by
Robert R. Henak.
 2016 WI 66
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2680-CR
(L.C. No. 2010CF365)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant-Petitioner, FILED
v. JUL 13, 2016
Patrick J. Lynch, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent.

REVIEW of a decision of the Court of Appeals. As a result

of a divided court, the law remains as the court of appeals has

articulated it.1

1
While five Justices would reverse the decision of the
court of appeals——in whole or in part——no more than three
Justices can agree on the same rationale or result.
Consequently, the law remains as the court of appeals has
articulated it. First, Justice Gableman, joined by Chief Justice
Roggensack and Justice R.G. Bradley, would overturn 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). Second, 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. Third, 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
(continued)
 No. 2011AP2680-CR

¶1 MICHAEL J. GABLEMAN, J. This is a review of a

published decision of the court of appeals2 that affirmed the

Dodge County Circuit Court's3 findings that (1) Patrick Lynch

("Lynch"), the defendant, made an adequate showing for an in

camera review of the complainant's privileged mental health

treatment records and (2) the complainant's testimony must be

excluded at trial because the complainant refused to disclose

her privileged mental health treatment records.

¶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

to Wis. Stat. § 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).
In this case, "no [majority of] justices reach agreement to
either affirm, reverse, or modify the decision of the court of
appeals consistent with precedent. Consequently, the court of
appeals decision remains the law of the case." State v. Johnson,
2014 WI 16, ¶2, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam)
(Johnson II) (citing Phillips v. U.S. Bank Nat'l Ass'n, 2010 WI
131, ¶¶1-2, 329 Wis. 2d 639, 791 N.W.2d 190)).

We note in passing that Justice Abrahamson and Justice A.W.
Bradley attempt to divert attention from the merits of this
important case. Lest we be incorrectly perceived as accepting
their invitation to lose sight of the forest for the trees, here
is the bottom line: "the court of appeals decision remains the
law of the case." Johnson II, 353 Wis. 2d 119, ¶2 (per curiam).
2
State v. Lynch, 2015 WI App 2, 359 Wis. 2d 482, 859
N.W.2d 125.
3
The Honorable Andrew P. Bissonnette presided.

2
 No. 2011AP2680-CR

under which a criminal defendant in Wisconsin could obtain an in

camera review of a person's privileged4 mental health treatment

records. Under Shiffa/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.

¶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

4
Wisconsin's privilege statute provides, "A patient has a
privilege to refuse to disclose and to prevent any other person
from disclosing confidential communications made or information
obtained or disseminated for purposes of diagnosis or treatment
of the patient's physical, mental, or emotional
condition . . . ." Wis. Stat. § 905.04(2).
5
Throughout this opinion, we use the pronoun "he" when
referring to a defendant because the defendant, Lynch, is a
male.
6
State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d
298, states the Shiffra/Green test as follows: "[T]he standard
to obtain an in camera review requires a defendant to set forth,
in good faith, a specific factual basis demonstrating a
reasonable likelihood that the records contain relevant
information necessary to a determination of guilt or innocence
and is not merely cumulative to other evidence available to the
defendant." Id., ¶19.

3
 No. 2011AP2680-CR

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 (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 heath
7
Wisconsin Stat. § 146.82(2)(a)4. (2013-14) allows a
patient's confidential health care records to be "released upon
request without informed consent" "under a lawful order of a
court of record."

All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated. Although the
acts giving rise to the alleged crimes in this case date back
many years, we cite to the most current version of the statutes
as no pertinent changes have been made.

4
 No. 2011AP2680-CR

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 heath 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

8
The State's petition for review framed the three issues as
follows:

1. Do defendants have a constitutional right to
disclosure of privately held privileged records? If
they do, what is the basis for the constitutional
right?

2. After determining that Lynch had made the showing
required by Shiffra/Green, could the circuit court
have invoked Wis. Stat. § 146.82(2)(a)4. to obtain
[the complainant's] records without her consent?

3. Assuming a circuit court cannot obtain a witness's
privileged records without her consent pursuant to
Wis. Stat. § 146.82(2)(a)4., is witness preclusion
always required when a defendant satisfies
Shiffra/Green but the victim withholds consent to an
in camera review of her privileged records?

5
 No. 2011AP2680-CR

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 (specifically a complainant's privileged mental
health treatment records) via a motion for in camera review. We

9
As noted previously, while five Justices would reverse the
decision of the court of appeals——in whole or in part——no more
than three Justices can agree on the same rationale or result.
As a result, the law remains as the court of appeals has
articulated it. See Johnson II, 353 Wis. 2d 119, ¶2 (per curiam)
("Specifically, no [majority of] justices reach agreement to
either affirm, reverse, or modify the decision of the court of
appeals consistent with precedent. Consequently, the court of
appeals decision remains the law of the case." (citing Phillips,
329 Wis. 2d 639, ¶¶1-2)).

6
 No. 2011AP2680-CR

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

I. BACKGROUND

¶9 As a young child, the complainant was repeatedly

sexually assaulted by her father. It was during this period of

sexual abuse that the complainant sought 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:

10
See, e.g., Hull v. State Farm Mut. Auto Ins. Co., 222
Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("As a general rule,
when our resolution of one issue disposes of a case, we will not
address additional issues.").

7
 No. 2011AP2680-CR

Q. The first time it happened –- let's talk about the
first time it happened. You went into this bathroom
that you agree was about three feet by five feet
approximately.

A. Yes.

Q. And there is a toilet and sink in this small room.

A. Right.

Q. And what you recall is, what, you walked in the
bathroom. Did you close the bathroom door?

A. Yes, I was in there going to the bathroom.

Q. Was your dad in the house at the time?

A. Yes, he was.

Q. And [Lynch] opened the door?

A. And came in.

Q. And were your slacks down at that point because you
were going to the bathroom?

A. I was pulling them up because I had just finished
going to the bathroom.

Q. And did he then take his clothes off?

A. He then put me on the ground.

. . . .

Q. And did he take your clothes off?

A. I had to pull my pants down.

Q. Did he tell you to do that or did he do it?

A. He told me to do it.

. . . .

Q. Did he take his trousers completely off to the best
of your recollection?

8
 No. 2011AP2680-CR

A. I remember him taking them down. I don't know if
they came off completely

Q. You stated that he placed his penis inside of your
vagina, correct?

A. Correct.

Q. Did he ejaculate?

A. I don't know.

Q. I know this may be difficult, but approximately how
long, in terms of time, was his penis inside of your
vagina?

A. Like five or ten minutes.

Q. Did you cry out or scream for help, or did you cry
out or scream in pain?

A. No, because I was terrified. He was wearing a cop
uniform and he had a gun and I was terrified of what
he would do.

Q. To your knowledge did you father know what was
going on?

A. Yes.

Q. How do you know that your father knew what was
going on?

A. Because he was right outside the door when it was
happening.

. . . .

Q. What do you remember happening on the second
incident in the winter of 1990?

A. I got called into the bathroom and he told me to
take my pants off. That's when he started fondling me.

Q. And did he, during that incident, take off his
trousers?

A. Yes.

9
 No. 2011AP2680-CR

. . . .

Q. [A]fter he started fondling you, did he place you
again on the floor?

A. Yes.

Q. And how long did this incident happen going
forward?

A. It felt like hours, but it was probably 15, 20
minutes.

Q. Do you remember if he ejaculated during that time?

A. I would believe so. At that time I -- you know, you
don't think about anything else. I [was] trying to
just block my mind and lay there.

Q. That floor, was it a hard floor or was there a rug
on it?

A. Hard.

Q. So like linoleum or something?

A. Cold.

. . . .

Q. So what happened during th[e] [third] occasion?

. . . .

A. I got called down again and I --

Q. Why did you go?

A. Because I felt like I had no choice. I was scared.
I was a little girl.

. . . .

Q. Your dad called you down and then [Lynch] took over
and --

A. And we went into the bathroom. At that time he made
me sit on the toilet and perform oral sex on him.

10
 No. 2011AP2680-CR

Q. Did he do -- did anything else occur? Did anything
else occur during this time besides oral sex?

A. After that he laid me down on the floor and stuck
his penis into my vagina.

Q. Were you crying during this incident?

A. Yes.

Q. The first incident were you crying?

A. Yeah.

Q. Second incident were you crying?

A. I had tears.

Q. Third incident when [another person] was there you
were crying?

A. Yes, I had tears. I was afraid to make any noise or
any sound.

. . . .
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:

Q. Tell us what you saw when you were working there
during that time? What happened?

11
 No. 2011AP2680-CR

A. The first time I saw him through the drive-thru and
he did the same thing that he did at [another
workplace], and he would stare me down and I walked
away at that time. I was a supervisor, so I could exit
and I didn't have to take transactions. So I would go
in back by the vault.

Q. Okay. How many times did that occur during the time
that you were working there between May of 2007 and
February of 2008 that he would go through –- that you
could see the defendant at the drive-thru?

A. At the drive-thru probably three times, four times.

Q. Okay. Total four times?

A. In the drive-thru. He did come into the lobby of
the bank too.

Q. Okay. Tell us about when he would come into the
lobby of the bank what would happen.

A. He would walk in and walk up to the table and kind
of look at where I was at, and then wait for my teller
line to be open, then approach mine. Then I would have
one of the tellers come and take my spot and I would
exit.

Q. How many times do you recall that happening during
the time that you were working there?

A. Like three.

Q. Okay. How do you know . . . that it just wasn't the
line that was open for him to conduct business at your
teller window?

A. Because there was always more than one teller. I
was just the one who filled in when the lines were
long. And there would be other tellers open at that
time when he would approach my window.

Q. Okay. When this was occurring, how did you feel
when you saw the defendant at [your workplace]?

A. I was terrified.

Q. Why is that?

12
 No. 2011AP2680-CR

A. Because it put me back to when I was a little girl.
I mean, I was afraid. He wore the same uniform that he
did –- I mean, when he molested me, that he did when
he came to [my workplace].
¶12 Many years after the alleged sexual assaults and

stalking by Lynch took place, the State charged Lynch with three

counts of first-degree sexual assault of a child11 and three

counts of stalking12.13

11
Wisconsin Stat. § 948.02(1) provides, "Whoever has sexual
contact or sexual intercourse with a person who has not attained
the age of 13 years and causes great bodily harm to the person
is guilty of a Class A felony." Sexual intercourse is defined as
"vulvar penetration as well as cunnilingus, fellatio, or anal
intercourse between persons or any other intrusion, however
slight, of any part of a person's body or of any object into the
genital or anal opening either by the defendant or upon the
defendant's instruction. The emission of semen is not required."
Wis. Stat. § 948.01(6).
12
Wisconsin Stat. § 940.32(2) states,

Whoever meets all of the following criteria is guilty
of a Class I felony:

(a) The actor intentionally engages in a course of
conduct directed at a specific person that would cause
a reasonable person under the same circumstances to
suffer serious emotional distress or to fear bodily
injury to or the death of himself or herself or a
member of his or her family or household.

(b) The actor knows or should know that at least one
of the acts that constitutes the course of conduct
will cause the specific person to suffer serious
emotional distress or place the specific person in
reasonable fear of bodily injury to or the death of
himself or herself or a member of his or her family or
household.

(c) The actor's acts cause the specific person to
suffer serious emotional distress or induce fear in
the specific person of bodily injury to or the death
(continued)
13
 No. 2011AP2680-CR

¶13 Prior to trial, Lynch filed a Shiffra/Green motion,

seeking to subpoena the complainant's "psychiatric,

psychological, counseling, therapy and clinical records" from

1993-2011 for in camera review. Lynch claims that the

complainant's treatment records will likely contain information

related to his defense. More specifically, Lynch contends the

records will show that (1) the complainant exhibits ongoing

symptoms of post traumatic stress disorder, which he argues

affects her memory; (2) the complainant did not report Lynch to

any treatment providers as a child; and (3) the complainant has

sociopathic personality disorder, a symptom of which is frequent

lying.

¶14 The circuit court granted Lynch's motion for in camera

review of the complainant's privileged mental health treatment

records. It ordered the complainant to disclose "the names and

addresses of all of her treatment providers since January 1,

1980." It then stated, "By treatment providers, the [c]ourt is

talking about physicians, psychologists, psychiatrists, and
other forms of therapists engaged in any form of counseling with

[the complainant] up to the present time." (Emphasis added.) The

court further ordered that if the complainant failed to release

of himself or herself or a member of his or her family
or household.
13
Only one of the three stalking charges arose out of
Lynch's interactions with the complainant. The other two charges
stem from Lynch's interactions with other women.

14
 No. 2011AP2680-CR

these records to the court, it would, pursuant to the remedy

contained in Shiffra/Green, bar her testimony at trial.

¶15 The complainant refused to surrender her privileged

mental health treatment records "[u]nless and until" the circuit

court's determination was reviewed by another court. As a

consequence, the court barred her from testifying against Lynch

at trial. The State filed an appeal.

¶16 The court of appeals affirmed. State v. Lynch, 2015 WI

App 2, 359 Wis. 2d 482, 859 N.W.2d 125. The court of appeals

agreed with the circuit court's finding that Lynch had met the

showing required by Shiffra/Green.14 The court further agreed

"with the circuit court that, under Shiffra[/Green], 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." Id., ¶1. As a result, the court of appeals remanded

for further proceedings. The State filed a petition for review

to this court, and we granted the State's petition.15

14
The issue of whether Lynch made the requisite showing
under Shiffra/Green is not at issue before this court because
the State did not seek review of the court of appeals'
conclusion that Lynch met the Shiffra/Green showing.
15
The dissent repeatedly chastises the State for bringing
the present claim before this court. See, e.g., Justice
Ziegler's dissent, ¶189. The State's decision to appeal this
case should not be harshly rebuked because the law in this case
is anything but "settled." After five Justices could not reach a
consensus in State v. Johnson, 2013 WI 59, 348 Wis. 2d 450, 832
N.W.2d 609 (per curiam) (Johnson I) and Johnson II, the State
was left with a messy predicament. As the State explained in its
petition for review, it seeks some much needed clarity:

(continued)
15
 No. 2011AP2680-CR

II. DISCUSSION

¶17 We begin by briefly discussing the difference between

privilege and confidentiality, and the two statutes involved in

this case: Wis. Stat. § 905.04 (privilege statute) and Wis.

Stat. § 146.82 (confidentiality statute). We then explain why it

was improper for the Shiffra/Green court to rely on Ritchie when

it created a right to access privileged information via a motion

for in camera review. Next, we discuss why Shiffra/Green's right

to access privileged information via a motion for in camera

review cannot be grounded in any other legal basis, specifically

any other constitutional provision. We note that even if there

were a right, that right would need to be balanced against

§ 905.04, the privilege statute. We would analogize this case,

which involves access to information, to situations involving

the presentation of evidence at trial. A series of opinions from

the Supreme Court of the United States instruct that when a

defendant seeks to present evidence at trial and is barred by

statute from doing so, a court may strike down the statute only
when it is arbitrary or disproportionate to the purpose the

statute is designed to serve. Here, the privilege statute is

neither arbitrary nor disproportionate to the purpose it was

To this day, [] this court has never issued a
precedential decision addressing——other than in
passing——the state's arguments for why Shiffra rests
on shaky constitutional ground and should be
overruled. This case affords the court the opportunity
to have all seven justices weigh in on this extremely
important constitutional question.

16
 No. 2011AP2680-CR

designed to serve. Finally, we end by discussing a few ways

defendants can meaningfully present a defense without having

access to a complainant's privileged mental health treatment

records.

A. STANDARD OF REVIEW

¶18 This case requires us to interpret and apply the

United States Constitution and the Wisconsin Constitution as

well as various statutes. "The interpretation of a

constitutional provision is a question of law that we review de

novo." Appling v. Walker, 2014 WI 96, ¶17, 358 Wis. 2d 132, 853

N.W.2d 888. "The interpretation and application of a statute

present questions of law that this court reviews de novo while

benefitting from the analyses of the court of appeals and

circuit court." State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193,

858 N.W.2d 346.

B. PRIVILEGE AND CONFIDENTIALITY

¶19 Two statutes, one relating to privilege and one

relating to confidentiality, are relevant to the present case.
Wisconsin Stat. § 905.04 protects a person's information by

making that information privileged: "A patient has a privilege

to refuse to disclose and to prevent any other from disclosing

confidential communications made or information obtained or

disseminated for purpose of diagnosis or treatment . . . ." In

contrast, Wis. Stat. § 146.82 protects information by making it

confidential: "All patient health care records shall remain

confidential." We must be mindful of the difference between
privileged information and confidential information:
17
 No. 2011AP2680-CR

Although they are separate concepts, the terms
privilege and confidentiality are often confused.
Privilege is an exception to the general rule that the
public has a right to every man's evidence.
Confidentiality is an ethic that protects the client
from unauthorized disclosure of information about the
client by the therapist . . . . The presence of
confidentiality alone is not enough to support a
privilege. Refusal by a professional to testify in the
absence of a privilege may result in a charge of
contempt of court against the professional, while a
breach of confidentiality may be the subject of a tort
action. Confidentiality, therefore, is a professional
duty to refrain from speaking about certain matters,
while privilege is a relief from the duty to speak in
court proceedings.
Catharina J.H. Dubbelday, Comment, The Psychotherapist-Client

Testimonial Privilege: Defining the Professional Involved, 34

Emory L.J. 777, 780-81 (1985) (quotation marks and footnotes

omitted).

C. THE COURT OF APPEALS IMPROPERLY RELIED ON RITCHIE WHEN IT
INVENTED A RIGHT TO ACCESS PRIVILEGED INFORMATION VIA A MOTION
FOR IN CAMERA REVIEW.
¶20 Since much of this case revolves around the Supreme

Court of the United State's decision in Ritchie, we begin by

reviewing its facts and holding. We then discuss the court of

appeals' treatment of Ritchie in the two cases leading up to

Shiffra as well as Shiffra.

1. The Original In Camera Review Case: Pennsylvania v. Ritchie.
¶21 In Ritchie, the Supreme Court addressed whether and to

what extent a state's interest in the confidentiality of its

investigative files concerning child abuse must yield to a

criminal defendant's Sixth and Fourteenth Amendment rights.
Ritchie, 480 U.S. at 42-43. In that case, Pennsylvania created

18
 No. 2011AP2680-CR

"a protective service agency charged with investigating cases of

suspected mistreatment and neglect."16 Id. at 43 (emphasis

added). The defendant was charged with "rape, involuntary

deviant sexual intercourse, incest, and the corruption of a

minor." Id. The alleged victim of those charges was the

defendant's thirteen-year-old daughter. Id. The daughter claimed

that she had been assaulted by the defendant two or three times

per week over a four year period. Id. After reporting the

incidents to the police, the case was referred to the protective

agency. Id.

¶22 Prior to trial, the defendant served the protective

agency with a subpoena; he sought access to the agency's records

concerning his daughter. Id. The protective agency refused to

turn over the records, claiming that the records were protected

from disclosure under Pennsylvania law. Id. The relevant

Pennsylvania statute provided,

reports made pursuant to this act including but not
limited to report summaries of child abuse . . . and
written reports . . . as well as any other information
obtained, reports written or photographs or x-rays
taken concerning alleged instances of child abuse in
the possession of the department, a county children
and youth social service agency or a child protective
service shall be confidential and shall only be made
available to:

. . . .

(5) A court of competent jurisdiction pursuant to a
court order.

16
The protective agency was called "Children and Youth
Services" ("CYS").

19
 No. 2011AP2680-CR

Id. at n.2 (first two alterations in original) (emphasis added);

see also id. at 43-44. To summarize, the statute required that

all reports and information obtained in the course of a

protective agency's investigation be kept confidential unless a

court ordered disclosure.

¶23 The defendant in Ritchie argued that he was entitled

to the confidential information because it might contain the

names of favorable witnesses as well as exculpatory information.

See id. at 55. Moreover, he claimed that the protective agency's

refusal to disclose the confidential information violated his

constitutional rights, specifically his Sixth Amendment rights

to Confrontation and Compulsory Process and his Fourteenth

Amendment right to Due Process. See id. at 51-52, 55-56, 57-58.

The Court rejected the defendant's arguments under the Sixth

Amendment and instead addressed his arguments under the

Fourteenth Amendment. Id. at 56 ("[B]ecause our Fourteenth

Amendment precedents addressing the fundamental fairness of

trials establish a clear framework for review, we adopt a due
process analysis for purposes of this case.").

¶24 In conducting its due process analysis, the Court

relied exclusively on Brady v. Maryland, 373 U.S. 83 (1963), the

case that first established a prosecutor's disclosure

obligation, and cases that clarify Brady. Indeed, the first

sentence of the Court's due process analysis reads, "It is

well[-]settled that the government has the obligation to turn

over evidence in its possession that is both favorable to the
accused and material to guilt or punishment." Id. at 57
20
 No. 2011AP2680-CR

(emphasis added). The Court then cited to Brady and United

States v. Agurs, 427 U.S. 97 (1976), a case that clarified

Brady's reach. Id. In fact, the only law cited in the Court's

due process analysis stems directly from Brady. Id. at 57-58.

¶25 Brady requires, as a prerequisite to disclosure, that

the information sought by the defendant be (1) in the

prosecutor's possession and (2) both favorable to the accused

and material to guilt or punishment. 373 U.S. at 87; see also

Ritchie, 480 U.S. at 57. The Ritchie Court readily concluded

that the first Brady requirement——that the information be in the

prosecutor's possession——was met, so it dove straight into the

second requirement——that the information be favorable to the

accused and material to guilt or punishment. Ritchie, 480 U.S.

at 57. It is clear the Ritchie Court assumed that Brady's

disclosure requirement applied to a state agency involved in

investigating the allegations as part of the prosecutorial state

function because the Court made quick-work of that requirement.

In contrast, the Court grappled with Brady's materiality
requirement:

At this stage, of course, it is impossible to say
whether any information in the [protective agency's]
records may be relevant to [the defendant's] claim of
innocence, because neither the prosecution nor defense
counsel have seen the information, and the trial judge
acknowledged that he had not reviewed the full file.
The Commonwealth, however, argues that no materiality
inquiry is required, because a statute renders the
contents of the file [confidential]. Requiring
disclosure here, it is argued, would override the
Commonwealth's compelling interest in confidentiality
on the mere speculation that the file "might" have
been useful to the defense.

21
 No. 2011AP2680-CR

Id. (emphasis added).

¶26 In considering how Brady's materiality standard should

apply to speculative, protected information, the Court balanced

the defendant's interest in the information against the State's

interest in protecting the information:

Although we recognize that the public interest in
protecting this type of sensitive information is
strong, we do not agree that this interest necessarily
prevents disclosure in all circumstances. This is not
a case where a state statute grants [the protective
agency] the absolute authority to shield its files
from all eyes. Rather, the [state] law provides that
the information shall be disclosed in certain
circumstances, including when [the protective agency]
is directed to do so by court order. Given that the
[state] Legislature contemplated some use of [the
protective agency's] records in judicial proceedings,
we cannot conclude that the statute prevents all
disclosure in criminal prosecutions. In the absence of
any apparent state policy to the contrary, we
therefore have no reason to believe that relevant
information would not be disclosed when a court of
competent jurisdiction determines that the information
is "material" to the defense of the accused.
Id. at 57-58 (emphases added) (citation omitted). Accordingly,

the Ritchie Court held that the defendant was entitled to have
the protective agency's investigative file reviewed in camera,

remarking that if the files "contain[ed] information that

probably would have changed the outcome of his trial," then

"[the defendant] must be given a new trial." Id. at 58. Thus,

the point of the in camera review was to determine whether the

files met Brady's second requirement——materiality.

¶27 In sum, there are two key takeaway points from
Ritchie. First, Ritchie involved a state statute that made the

22
 No. 2011AP2680-CR

protective agency's investigative files confidential. But the

statute specifically allowed for disclosure per a court order.

The Court leaned heavily on this fact in reaching its

conclusion, commenting, "the [state] law provides that the

information shall be disclosed in certain circumstances,

including when [the agency] is directed to do so by court

order." Id. at 57-58.

¶28 Second, the protective agency, the entity holding the

records, was responsible for "investigating cases of suspected

mistreatment and neglect," including the allegations made

against the defendant in that case. Id. 42-43. The Ritchie Court

considered the "investigative" status of the protective agency

important because it cited exclusively to Brady and post-Brady

cases, which require the prosecutor to turn over files in his or

her possession. The Ritchie Court's actions (summarily skipping

over this requirement) demonstrate that the protective agency

met Brady's possession requirement because the protective agency

performed state investigative and prosecutorial functions.
¶29 And this conclusion makes sense. Since Brady, the

Court has held that the prosecutor's Brady obligation extends to

"others acting on the government's behalf in the case, including

the police." See Kyles v. Whitley, 514 U.S. 419, 437 (1995)

("[T]he individual prosecutor has a duty to learn of any

favorable evidence known to the others acting on the

government's behalf in the case, including the police."

(emphasis added)); Strickler v. Greene, 527 U.S. 263, 281 (1999)
("In order to comply with Brady, therefore, 'the individual
23
 No. 2011AP2680-CR

prosecutor has a duty to learn of any favorable evidence known

to the others acting on the government's behalf in this case,

including the police.'" (citing Kyles, 514 U.S. at 437)). In

Ritchie, the state statute charged the relevant protective

agency with "investigating cases of suspected mistreatment and

neglect." 480 U.S. at 43. There, in particular, the defendant's

case was "referred" to the protective agency. Id. In short, it

made sense for the Supreme Court to rely on Brady and post-Brady

cases in Ritchie because the protective agency was charged with

investigating the allegations and was, therefore, acting on the

prosecution's behalf. As a result, any material it had was

constructively within the possession of the prosecution.

2. Our Court of Appeals Gradual Expansion of Ritchie: In the
Interest of K.K.C., State v. S.H., and State v. Shiffra.
¶30 Nearly one year after the Supreme Court of the United

States decided Ritchie, our court of appeals took up In the

Interest of K.K.C., 143 Wis. 2d 508, 422 N.W.2d 142 (Ct. App.

1988). The court reached the following conclusion regarding

Ritchie:

[The defendant] contends that if the trial judge in
his criminal case does not review the agency's files,
he will be denied his constitutional rights to
confrontation, compulsory process, and due process.
Ritchie holds that a criminal defendant is entitled to
an in camera review by the trial court of confidential
records if those records are material to the
defendant's defense.

[The defendant] has not moved the trial court in his
criminal case to make an in camera review of the
agency records. If he does so, Ritchie, supra,
establishes that he is entitled to such a review by

24
 No. 2011AP2680-CR

the trial court, provided he makes a preliminary
showing that the files contain evidence material to
his defense.
In the Interest of K.K.C., 143 Wis. 2d 508, 511, 422 N.W.2d 142

(Ct. App. 1988) (citations omitted). That's the court's entire

Ritchie analysis.

¶31 The statute in K.K.C., Wis. Stat. § 48.78(2)(a),

provided, "No agency may make available for inspection or

disclose the contents of any record kept or information received

about any individual in its care or legal custody, except as
provided [under other subsections] or by order of the court."

Id. at 509-10. Similar to the statute in Ritchie, § 48.78(2)(a)

carved out a court order exception. However, unlike in Ritchie,

it is unclear whether the County Department of Social Services

was "investigating" or "acting on the government's behalf" by

assisting the prosecution.

¶32 Two years later, the court of appeals decided State v.

S.H., 159 Wis. 2d 730, 465 N.W.2d 238 (Ct. App. 1990). There,

the court once again interpreted Ritchie, this time broadly

expanding Ritchie's reach. In S.H., the State charged the
defendant with twelve counts of first-degree sexual assault.

State v. S.H., 159 Wis. 2d 730, 733, 465 N.W.2d 238 (Ct. App.

1990). The alleged victims of those charges were the defendant's

three children. Id. Prior to trial, the defendant sought a court

order directing the children's counseling center (Directions

Counseling Center) to provide him with copies of the children's

treatment records. Id. at 734. The counseling center refused to
release the records after the children's guardian ad litem

25
 No. 2011AP2680-CR

claimed the psychologist-patient privilege (Wis. Stat. § 905.04)

on behalf of the children. Id. The court of appeals, citing

Ritchie and K.K.C., concluded that "if a defendant makes a

preliminary showing that the records contain evidence material

to his defense, he is entitled to an in camera review by the

trial court of those records." Id. at 738. Here is the court of

appeals' analysis and application of Ritchie:

[Ritchie] controls S.H.'s constitutional right to
compel disclosure of confidential records. That
[C]ourt conducted a due process analysis and concluded
that the defendant was entitled to an in camera review
by the trial court of confidential records. In
Ritchie, the Court struck a balance between the
protection of confidential information and the
defendant's interest in obtaining exculpatory
information. The Court recognized that an in camera
review denied the defendant the benefit of an
"advocate's eye." However, such review adequately
protected the defendant's rights while protecting the
confidentiality of the records. Accordingly, if a
defendant makes a preliminary showing that the records
contain evidence material to his defense, he is
entitled to an in camera review by the trial court of
those records.
Id. at 737-38 (citations omitted). The court of appeals left out

some of Ritchie's crucial features.

¶33 For example, unlike in Ritchie and K.K.C., where the

records sought were confidential, the records sought in S.H.

were privileged under Wis. Stat. § 905.04. Moreover, unlike the

statutes in Ritchie and K.K.C., § 905.04 does not contain an

exception allowing for release by court order.

¶34 Additionally, in S.H., a private mental health
facility, Directions Counseling Center, held the privileged

26
 No. 2011AP2680-CR

records. Id. at 733-34. Unlike the protective agency in Ritchie,

no facts in the court of appeals' opinion would suggest that

Directions Counseling Center was involved in "investigating" the

sexual assault allegations or was in any way acting on behalf of

the prosecutor. In reaching its conclusion, the court of appeals

failed to take notice of these important distinguishing

features. Instead, the court incorrectly interpreted Ritchie to

mean "that the defendant was entitled to an in camera review by

the trial court of confidential records." Id. at 737-38.

¶35 Almost three years later, the court of appeals

considered State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719

(Ct. App. 1993). In Shiffra, the state charged the defendant

with second-degree sexual assault. 175 Wis. 2d at 602. Prior to

trial, the defendant moved for an order requiring the

complainant to reveal to the defendant her "psychiatric history,

psychiatric records, and to execute an authorization to release

medical information from any doctors, hospitals or counselors

seen by [the complainant] . . . ." Id. at 603. The State opposed
the motion, arguing that the complainant's records were

privileged under Wis. Stat. § 905.04. Despite the State's

argument that "th[e] case d[id] not fall within the ambit of

Ritchie because [the complainant's] records [were] not in the

possession of the prosecution or any other state agency," the

court concluded,

We are bound by Wisconsin precedent, which clearly
makes Ritchie applicable to cases in which the
information sought by the defense is protected by
statute and is not in the possession of the state. See

27
 No. 2011AP2680-CR

K.K.C., 143 Wis. 2d at 511, 422 N.W.2d at 144
(information sought was confidential); S.H., 159
Wis. 2d at 736, 465 N.W.2d at 240-41 (information
sought was protected under sec. 905.04, Stats., and
was in the possession of a private counseling center).
According to these cases, Shiffra is entitled to an in
camera inspection if he meets the burden of making a
preliminary showing of materiality. The State contends
that S.H. and K.K.C. are not binding because their
relevant language is dicta. We do not agree. Both
cases unequivocally adopted Ritchie as the law in
Wisconsin even when the records are not in the state's
possession.
Id. at 606-07.

¶36 To say the court of appeals took some liberties

interpreting and applying Ritchie would be an understatement.

Over the course of three cases, K.K.C., S.H., and Shiffra, the

court of appeals swept into Ritchie's reach privileged records

held by entities completely removed from the investigative

criminal process. Ritchie——a case concerning confidential

records (subject to numerous exceptions) held by the very agency

charged with investigating the offense and therefore soundly

rooted in Brady——never should have been stretched to cover

privileged records held by agencies far removed from
investigative and prosecutorial functions. As a result, we

conclude that the court of appeals improperly relied on Ritchie

when it created a right to access privileged information that is

not in the prosecutor's hands via a motion for in camera review.

3. This Court's Adoption of Shiffra.

¶37 This court appears to have first "adopted" the court

of appeals' Shiffra test in State v. Solberg, 211 Wis. 2d 372,
564 N.W.2d 775 (1997). We use the term "adopted" loosely because

28
 No. 2011AP2680-CR

the Solberg court simply parroted Shiffra's test and then cited

Shiffra:

Whether the court of appeals had the authority to
examine E.H's records is dependent on whether the
circuit court appropriately conducted an in camera
inspection of the records. If the circuit court had
the authority to review the privileged records, then
the court of appeals also had the authority to do so.
A circuit court should conduct an in camera review of
privileged medical records when the defendant makes "a
preliminary showing that the sought-after evidence is
material to his or her defense," and the privilege
holder consents to review of those records.
State v. Solberg, 211 Wis. 2d 372, ¶16, 564 N.W.2d 775 (1997)

(footnote omitted) (quoting Shiffra, 175 Wis. 2d at 605). The

Solberg court's singular string of reasoning for such a rule was

its "belie[f] that giving the defendant an opportunity to have

the circuit court conduct an in camera review of the privileged

records, while still allowing the patient to preclude review,

addresse[d] both the interests of the defendant and the

patient." Id., ¶23. In essence, Shiffra seemed fair enough to

the Solberg court.
¶38 We also considered Shiffra in State v. Rizzo, 2002 WI

20, 250 Wis. 2d 407, 640 N.W.2d 93. Similar to the court in

Solberg, the Rizzo court applied Shiffra without any analysis of

Shiffra or its foundation. Here is the Rizzo court's application

of Shiffra:

We do no adopt Rizzo's position because it would
eviscerate the procedure for in camera review set
forth in Shiffra, which protects a victim's
confidential records. In effect, Rizzo's position
would provide that the defendant must receive full
access to the victim's treatment records in every case

29
 No. 2011AP2680-CR

in order to effectively cross-examine an expert who
treated the victim. That is in stark contrast to the
in camera procedure under Shiffra, which specifically
balanced the victim's interest in confidentiality
against the constitutional rights of the defendant.
State v. Rizzo, 2002 WI 20, ¶53, 250 Wis. 2d 407, 640 N.W.2d 93

(citing Shiffra, 175 Wis. 2d at 609-10).

¶39 Finally, in State v. Green, this court modified

Shiffra's standard for obtaining an in camera review. The Green

court's consideration of whether Shiffra was good law is as

follows:

The State contends that the holding in [Shiffra] was
in error because it relied on [Ritchie]. The State
argues that Ritchie was distinguishable and therefore
inapplicable because it involved a situation, unlike
here, where the records were in the government's
possession. The Shiffra court, however, specifically
rejected this argument, concluding that it was bound
by Wisconsin precedent, which clearly made Ritchie
applicable in cases where the information sought by
the defense is not in the possession of the state.
Shiffra, 175 Wis. 2d at 606-07, 499 N.W.2d 719 (citing
State v. S.H., 159 Wis. 2d 730, 736, 465 N.W.2d 238
(Ct. App. 1990), and In re K.K.C., 143 Wis. 2d 508,
511, 422 N.W.2d 142 (Ct. App. 1988)). This court
recognized the validity of Shiffra in [Solberg] and
[Rizzo]. We will not depart from this precedent.
Green, 253 Wis. 2d 356, ¶21 n.4.17 To put it bluntly, Shiffra

17
The dissent repeatedly uses this footnote in Green to
proclaim that we have expressly declined to overrule Shiffra.
See Justice Ziegler's dissent, ¶190; see also Justice Prosser's
dissent, ¶167. In reality, this footnote shows that courts have
continued to blindly adhere to poorly reasoned cases solely
because they have felt compelled to do so. Any one of these
courts along the way could have at least attempted to address
the State and answer the question of whether a defendant has a
constitutional right to access privileged information, and if
so, what the basis of that right is. None did. We cannot
continue to pass the buck. We must roll up our sleeves and dig
(continued)
30
 No. 2011AP2680-CR

kept the balancing test invented by the court of appeals in S.H.

and K.K.C. because it felt "bound by precedent," and this court

kept Shiffra because Solberg and Rizzo appeared to apply it.

This is the untenable foundation upon which Shiffra was built

and now rests. We will not rubber stamp the Shiffra test solely

because it has been inexplicably applied.18

into the law. Interpreting the Constitution is, after all, the
ultimate responsibility of this court. See Powell v. McCormack,
395 U.S. 486, 521 (1969).
18
The dissent relies on Kimble v. Marvel Entertainment,
LLC, 576 U.S. __, 135 S. Ct. 2401 (2015) for the proposition
that "an argument that we got something wrong——even a good
argument to that effect——cannot by itself justify scrapping
settled precedent." Justice Ziegler's dissent, ¶208. Kimble is a
statutory interpretation case. Accordingly, in Kimble, the
Supreme Court of the United States discussed stare decisis in
the context of statutory interpretation:

What is more, stare decisis carries enhanced force
when a decision . . . interprets a statute. Then,
unlike in a constitutional case, critics of our ruling
can take their objections across the street, and
Congress can correct any mistake it sees. . . . All of
interpretive decisions, in whatever way reasoned,
effectively become part of the statutory scheme,
subject (just like the rest) to congressional changes.
Absent special justification, they are balls tossed
into Congress's court, for acceptance or not as that
branch elects.

Kimble v. Marvel Entm't, LLC, 576 U.S. __, 135 S. Ct. 2401, 2409
(2015) (emphasis added).

Even Kimble's "general" discussion of the law speaks to
stare decisis in the context of statutory interpretation, as it
cites to Justice Brandeis's dissent in Burnet v. Coronado Oil &
Gas Co., 285 U.S. 393 (1932). Burnet explains,

Stare decisis is usually the wise policy, because in
most matters it is more important that the applicable
(continued)
31
 No. 2011AP2680-CR

rule of law be settled than that it be settled right.
This is commonly true even where the error is a matter
of serious concern, provided correction can be had by
legislation. But in cases involving the Federal
Constitution, where correction through legislative
action is practically impossible, this court has often
overruled its earlier decisions. The court bows to the
lessons of experience and the force of better
reasoning . . . .

Id., 285 U.S. at 406-08 (Brandeis, J., dissenting) (citations
omitted).

It is important to recognize the distinction between
statutory interpretation and constitutional interpretation. As
noted by the Supreme Court, "unlike in a constitutional case,"
critics of a statutory interpretation case can take their
objections to the Legislature, and it can then can "correct any
mistake it sees." Id. (emphasis added); see also Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 954-55 (1992)
(Rehnquist, C.J., concurring in part, dissenting in part)
("Erroneous decisions in [] constitutional cases are uniquely
durable, because correction through legislative action, save for
constitutional amendment, is impossible. It is therefore our
duty to reconsider constitutional interpretations that depart
from a proper understanding of the Constitution." (quotation
marks and citations omitted)). In declaring that a defendant has
a constitutional right in this case, the dissenters remove the
issue from public discussion and legislative action. See
Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2584, 2625 (2015)
(Roberts, C.J., dissenting) ("By deciding this question under
the Constitution, the Court removes it from the realm of
democratic decision. There will be consequences to shutting down
the political process on an issue of such profound public
significance. Closing debates tends to close minds.").

Moreover, the Supreme Court of the United States has
overruled precedent when the precedential case was "badly
reasoned." See Payne v. Tennessee, 501 U.S. 808, 827 (1991)
([W]hen governing decisions are unworkable or badly reasoned,
'this court has never felt constrained to follow precedent.'"
(citing Smith v. Allwright, 321 U.S. 649, 665 (1944) (emphasis
added))); Arizona v. Gant, 556 U.S. 332, 348 (2009) ("The
doctrine of stare decisis is of course 'essential to the respect
accorded to the judgments of the Court and to the stability of
the law,' but it does not compel us to follow a past decision
(continued)
32
 No. 2011AP2680-CR

We therefore undertake to consider whether there is any legal

basis in which Shiffra can properly be grounded.19

D. NEITHER THE SIXTH AMENDMENT NOR THE FOURTEENTH AMENDMENT
GUARANTEE A DEFENDANT THE RIGHT TO ACCESS PRIVILEGED INFORMATION
VIA A MOTION FOR IN CAMERA REVIEW.
¶40 We turn now to discuss whether there is any other

legal basis for creating a right to access privileged

when its rationale no longer withstands 'careful analysis.'"
(emphasis added) (quoting Lawrence v. Texas, 539 U.S. 558, 577
(2003)); Gant, 556 U.S. at 353 (Scalia, J., concurring)
("Justice Alito insists that the Court must demand a good reason
for abandoning prior precedent. That is true enough, but its
seems to me ample reason that the precedent was badly reasoned
and produces erroneous (in this case unconstitutional)
results."); Montejo v. Louisiana, 556 U.S. 778, 792-73
(commenting that "[b]eyond workability, the relevant factors in
deciding whether to adhere to the principle of stare decisis
include the antiquity of the precedent, the reliance interests
at stake, and of course whether the decision was well reasoned,"
and noting that the precedential opinion there was "only two
decades old" so "eliminating it would not upset expectations")
(emphasis added)); see Citizens United v. Fed. Election Comm'n,
558 U.S. 310, 378 (2010) (Roberts, C.J., concurring) ("When
considering whether to reexamine a prior erroneous holding, we
must balance the importance of having constitutional questions
decided against the importance of having them decided right.").
19
In case this point has not been made abundantly clear in
the 15 pages detailing the countless inadequacies of
Shiffra/Green, Shiffra/Green was wrongly decided, is unsound in
principle, and should, therefore, be overruled. See Johnson
Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶¶98-99,
264 Wis. 2d 60, 665 N.W.2d 257 (overruling precedent and
outlining a series of concerns a court should consider when
overturning prior case law, including "whether the prior case
was correctly decided," and "whether the prior decision is
unsound in principle"); see also id., ¶100 ("We do more damage
to the rule of law by obstinately refusing to admit errors,
thereby perpetuating injustice, than by overturning an erroneous
decision.").

33
 No. 2011AP2680-CR

information via a motion for in camera review. An analysis of

other cases tackling this topic reveals that defendants have

consistently argued that three constitutional provisions——the

Sixth Amendment's Confrontation Clause and Compulsory Process

Clause and the Fourteenth Amendment's Due Process Clause——give

rise to a right to access privileged information via a motion

for in camera review. See, e.g., Indiana v. Fromme, 949 N.E.2d

789, 795 (Ind. 2011). Each provision will be discussed in turn

below.

1. The Sixth Amendment's Confrontation Clause.

¶41 The United States Constitution provides, "In all

criminal prosecutions the accused shall enjoy the right . . . to

be confronted with witnesses against him . . . ." U.S. Const.

amend. VI.20 The Supreme Court of the United States has

explained, "The Confrontation Clause provides two types of

protections for a criminal defendant: the right physically to

face those who testify against him, and the right to conduct

cross-examination. Ritchie, 480 U.S. at 51 (plurality opinion).21
¶42 A plurality of the Supreme Court has specifically

considered——and rejected——the argument that "by denying [a

20
The Wisconsin Constitution provides, "In all criminal
prosecutions the accused shall enjoy the right . . . to meet
witnesses face to face . . . ." Wis. Const. art. I, § 7.
21
Justice Powell's discussion of the Confrontation Clause
in Ritchie garnered a plurality of the Court. 480 U.S. at 42.
Justice Powell's discussion of the Compulsory Process Clause and
the Due Process Clause garnered a majority of the Court. Id.

34
 No. 2011AP2680-CR

defendant] access to the information necessary to prepare his

defense, the trial court interfered with [a defendant's] right

of cross-examination." Id. In Ritchie, the Court commented on

the limited nature of a defendant's right to cross-examination:

"The ability to question adverse witnesses, however, does not

include the power to require the pretrial disclosure of any and

all information that might be useful in contradicting

unfavorable testimony." Id. at 53. Moreover, the Court went on

to add, "If we were to accept this broad interpretation . . . ,

the effect would be to transform the Confrontation Clause into a

constitutionally compelled rule of pretrial discovery. Nothing

in the case law supports such a view. The opinions of this Court

show that the right to confrontation is a trial right . . . ."

Id. at 52 (first emphasis added). Thus, the right to cross

examine witnesses is satisfied when "defense counsel receives

wide latitude at trial to question witnesses." Id. at 53 n.9

("[T]he Confrontation Clause only protects a defendant's trial

rights[; it] does not compel the pretrial production of
information that might be useful in preparing for trial.").

¶43 Similar to the defendant in Ritchie, Lynch's argument

would be that the court interfered with his ability to most

effectively cross examine the complainant by denying him access

to the complainant's privileged mental health treatment records.

A plurality of the Supreme Court has already rejected this

argument, and we reject this argument now. Lynch's right to

cross examination will be satisfied so long as he has the
opportunity to cross examine the complainant at trial.
35
 No. 2011AP2680-CR

2. The Sixth Amendment's Compulsory Process Clause.

¶44 The United States Constitution provides, "In all

criminal prosecutions the accused shall enjoy the right . . . to

have compulsory process for obtaining witnesses in his favor."

U.S. Const. amend. VI.22 The Supreme Court of the United States

has explained that the Compulsory Process Clause grants a

defendant the "right to offer the testimony of witnesses, and to

compel their attendance, if necessary . . . ." Washington v.

Texas, 388 U.S. 14, 19 (1967); see also Ritchie, 480 U.S. at 56

(majority opinion) ("Our cases establish, at a minimum, that

criminal defendants have the right to the government's

assistance in compelling the attendance of favorable witnesses

at trial and the right to put before a jury evidence that might

influence the determination of guilt." (emphasis added)).

¶45 In State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746

N.W.2d 457, we analyzed the Ritchie Court's treatment of the

Compulsory Process Clause, specifically taking notice of the

Supreme Court's "reluctan[ce] to establish an unconditional
discovery right under the Sixth Amendment." Id., ¶66. In

Ritchie, the Court reiterated that it "has never squarely held

that the Compulsory Process Clause guarantees the right to

discover the identity of witnesses, or to require the government

to produce exculpatory evidence." Ritchie, 480 U.S. at 56

22
The Wisconsin Constitution provides, "In all criminal
prosecutions the accused shall enjoy the right . . . to have
compulsory process to compel the attendance of witnesses in his
behalf . . . ." Wis. Const. art. I, § 7.

36
 No. 2011AP2680-CR

(emphasis omitted). Consequently, the Court chose to forego a

Sixth Amendment analysis and instead opted for a Fourteenth

Amendment Due Process analysis. Id. It explained, "Although we

conclude that compulsory process provides no greater protections

in this area than those afforded by due process, we need not

decide today whether and how the guarantees of the Compulsory

Process Clause differ from those of the Fourteenth Amendment."

Id. In Schaefer, we interpreted the Court's statement in Ritchie

to mean that "unless due process required defense access to

specific evidence, the Compulsory Process Clause cannot provide

substitute authority for such access." Schaefer, 308

Wis. 2d 279, ¶66. Following the Supreme Court's lead, we move on

to consider whether the Due Process Clause guarantees a

defendant the right to access privileged information via a

motion for in camera review.23

23
For a discussion on the interplay between the Compulsory
Process Clause and the Due Process Clause, see Stacey Kime,
Note, Can A Right Be Less Than The Sum Of Its Parts? How The
Conflation Of Compulsory Process and Due Process Guarantees
Diminished Criminal Defendants Rights, 48 Am. Crim. L. Rev. 1501
(2011) and Sanjay Chhablani, Disentangling The Sixth Amendment,
U. Pa. J. Const. L. 487, 523-29 (2009). Both law review articles
advocate for a separation of the two constitutional provisions:
"The rights under the Compulsory Process Clause provide the
structure for a fair trial . . . while the Due Process Clause
governs the fairness of the trial itself . . . ." Stacey Kime,
Note, Can A Right Be Less Than The Sum Of Its Parts? How The
Conflation Of Compulsory Process and Due Process Guarantees
Diminished Criminal Defendants Rights, 48 Am. Crim. L. Rev.
1501, 1524 (2011); see also Sanjay Chhablani, Disentangling The
Sixth Amendment, U. Pa. J. Const. L. 487, 527-28 (2009)
("[W]hile the Compulsory Process Clause gives defendants the
right to the issuance of subpoenas for compelling a witness's
attendance in court, once that witness shows up, it is the Due
(continued)
37
 No. 2011AP2680-CR

3. The Fourteenth Amendment's Due Process Clause.

¶46 The United States Constitution provides, "No State

shall . . . deprive any person of life, liberty or property,

without due process of law . . . ." U.S. Const. amend. XIV.24 Due

Process requires that criminal prosecutions comport with

"prevailing notions of fundamental fairness." California v.

Trombetta, 467 U.S. 479, 485 (1984). Fundamental fairness

necessitates that "criminal defendants be afforded a meaningful

opportunity to present a complete defense." Id. However, the

right to present a complete defense has never been interpreted

to include a general right to access (or discover) information

in a criminal case. To the contrary, the Supreme Court has

consistently recognized that "there is no general constitutional

right to discovery in a criminal case . . . ." Ritchie, 480 U.S.

at 59-60 (quoting Weatherford v. Bursey, 429 U.S. 545, 559

(1977)).

¶47 We too have held that there is no general

constitutional right to access information in criminal cases.
See State v. Miller, 35 Wis. 2d 454, 151 N.W.2d 157 (1967); see

also Britton v. State, 44 Wis. 2d 109, 170 N.W.2d 785 (1969)

Process Clause that addresses whether the witness will be
allowed to testify.").
24
The Wisconsin Constitution provides, "All people are born
equally free and independent, and have certain inherent rights;
among these are life, liberty, and the pursuit of happiness; to
secure these rights, governments are instituted, deriving their
just powers from the consent of the governed." Wis. Const. art.
I, § 1.

38
 No. 2011AP2680-CR

("Discovery has been left to rule-making power and has not been

deemed a constitutional issue."). Accordingly, a defendant is

entitled to access information only to the extent outlined in

Wis. Stat. § 971.23, our criminal discovery statute. Schaefer,

398 Wis. 2d 279, ¶77 n.17 ("[T]he scope of discoverable

materials is set out in statute and compliance with the statute

will be enforced by the court."); see also Miller, 35 Wis. 2d at

474 ("[I]t has been held that unless introduced by appropriate

legislation, the doctrine of discovery is a complete and utter

stranger to criminal procedure." (quoting 23 C.J.S. Criminal Law

§ 955(1), p. 787)).25

¶48 Of course, "[s]tatutory discovery is conceptually

distinct from the prosecution's constitutionally-mandated duty

to disclose exculpatory evidence" under Brady. 9 Wis. Prac.,

Criminal Practice & Procedure § 22:1 (2d ed.); see also Miller,

25
Of course, the Supreme Court of the United States could
decide to create a due process right to access privileged
information, in which case, we would naturally follow the
Supreme Court's directive. To date, the Supreme Court has not
recognized a due process right to access privileged information.
See California v. Trombetta, 467 U.S. 479, 486 (explaining that
the Court has allowed some access to information when a
prosecutor uses his or her "sovereign powers" to "hamper" a
defendant's trial, but purposely leaving open the question of
whether "the Due Process Clause . . . guarantee[s] criminal
defendants access to exculpatory evidence beyond the
government's possession" (emphasis added)); see also People v.
Hammon, 938 P.2d 986 (Cal. 1997) ("We do not, however, see an
adequate justification for taking such a long step in a
direction the United States Supreme Court has not gone.").

39
 No. 2011AP2680-CR

35 Wis. 2d at 474-78; Britton, 44 Wis. 2d at 117-18; Schaefer,

308 Wis. 2d 279, ¶¶22-23. In Britton, we explained,

A distinction must be made between "disclosure" and
"discovery." Discovery emphasizes the right of the
defense to obtain access to evidence necessary to
prepare its own case, while disclosure concerns itself
with the duty of the prosecution to make available to
the accused evidence and testimony which, as a minimum
standard, is exculpatory based on constitutional
standards of due process. Discovery has been left to
rule-making power and has not been deemed a
constitutional issue. On the other hand, disclosure,
or the failure to disclose, is a constitutional issue
to be decided on a case by case basis . . . .
Britton, 44 Wis. 2d at 117-18 (emphasis added).

¶49 A prosecutor's constitutionally-mandated duty to

disclose arises out of the Supreme Court of the United State's

decision in Brady. In Brady, the Court held that "the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution." 373 U.S. at 87

(emphasis added). The Court reasoned, "A prosecution that
withholds evidence on demand of an accused which, if made

available, would tend to exculpate him or reduce the penalty

helps shape a trial that bears heavily on the defendant. That

casts the prosecutor in the role of an architect of a proceeding

that does not comport with standards of justice . . . ." Id. at

87-88 (emphasis added). Stated otherwise, a defendant is treated

unfairly when a prosecutor hides favorable evidence from a
defendant.

40
 No. 2011AP2680-CR

¶50 The Supreme Court of the United States has

consistently limited Brady's disclosure requirement to the

prosecutor and to others acting on the prosecutor's behalf. See

Kyles, 514 U.S. at 437 ("[T]he individual prosecutor has a duty

to learn of any favorable evidence known to the others acting on

the government's behalf in the case, including the police."

(emphasis added)); Strickler, 527 U.S. at 281 ("In order to

comply with Brady, therefore, 'the individual prosecutor has a

duty to learn of any favorable evidence known to others acting

on the government's behalf in this case, including the police.'"

(citing Kyles, 514 U.S. at 437)). For example, in Pitonyak v.

Stephens, 732 F.3d 525 (5th Cir. 2013), the Fifth Circuit,

recognizing Brady's limitation, held that the prosecution's

Brady requirement did not extend to "a jail counselor" because

the counselor was "not involved in investigating or preparing

the case against [the defendant]." Id. at 531, 533.

¶51 And in Illinois v. C.J., 652 N.E.2d 315 (Ill. 1995),

the Supreme Court of Illinois held that "where [the Division of
Child Family Services] acts at the behest of and in tandem with

the State's Attorney, with the intent and purpose of assisting

the prosecutorial effort, DCFS functions as an agent of the

prosecution," and is therefore subject to Brady's disclosure

requirement. Id. at 318. However, because "there was no evidence

to support the conclusion that the DCFS investigator [there]

functioned, intentionally or otherwise, as an aid in the

prosecution of the case," the prosecutor's Brady requirement did
not extend to that particular DCFS agent. Id.
41
 No. 2011AP2680-CR

¶52 For comparison, in Commonwealth v. Bing Sial Liang,

747 N.E.2d 112 (Mass. 2001), the Supreme Judicial Court of

Massachusetts held that a victim advocate's notes fell within

the prosecutor's Brady requirement because "[a]dvocates are

included in the statute's definition of 'prosecutor' and

generally are employees of the prosecution." Id. at 116. The

Court went on to say, "advocates are paid by the various

district attorney[s'] offices [and] work closely with the

prosecutors developing cases.' Clearly the Legislature views

advocates as part of the prosecution team." Id. (alterations in

original) (citations omitted).

¶53 Notably, both the Seventh and Eighth Circuits have

rejected defendants' attempts to subpoena treatment records in

preparation for trial despite the defendants' assertions that

withholding the information would deprive them of a fair trial.

United States v. Hach, 162 F.3d 937 (7th Cir. 1998); United

States v. Skorniak, 59 F.3d 750 (8th Cir. 1995). In Hach, the

defendant sought a witness's "medical and psychiatric records
for purposes of conducting an in camera review, and ultimately

to release them to him for use in cross-examination." 162 F.3d

at 946. In denying the defendant's request, the Seventh Circuit

noted,

[The defendant's] attempt to bootstrap onto Ritchie
suffers from a grave[] problem——the evidence is not
and never was in the government's possession. As the
Eighth Circuit noted in United States v. Skorniak, a
failure to show that the records a defendant seeks are
in the government's possession is fatal to the
defendant's claim. . . . [I]f the documents are not in

42
 No. 2011AP2680-CR

the government's possession, there can be no "state
action" and consequently, no violation of [the]
Fourteenth Amendment.
Id. at 947 (emphasis added). Simply, because the records were

not held by the prosecutor or an entity acting on behalf of the

prosecutor, the defendant was not entitled to disclosure of the

records.

¶54 To summarize, a defendant has a right to present a

meaningful defense, but this right is not limitless. It does not

include a constitutional right to access privileged information
via a motion for in camera review. Discovery is purely

statutory; accordingly, a defendant's right to obtain

information is to be found in Wis. Stat. § 971.23. In contrast,

a defendant has a constitutional right, under Brady, to material

information but only when that information is held by the

prosecutor, including others acting on the prosecutor's behalf.

Outside of the prosecution's limited disclosure requirement,

there is no constitutional right to access information.

Weatherford, 429 U.S. at 559 ("There is no general

constitutional right to discovery in a criminal case, and Brady
did not create one.").

¶55 Here, there is nothing to show that the complainant's

private mental health facility was acting on behalf of the

prosecutor. Unlike in Ritchie and Bing Sial Ling, the

complainant's mental health facility was not statutorily created

for the purpose of "investigating" crime. Additionally, there

are no facts in the record that would indicate that the facility
was acting on behalf of or in tandem with the prosecutor.

43
 No. 2011AP2680-CR

Consequently, this case does not implicate Brady. In sum, Lynch

has no right to access the complainant's privileged treatment

information via a motion for in camera review because there is

no constitutional right to access information and because the

information does not fall under Brady's limited disclosure

obligation.26

E. EVEN IF THERE WERE A RIGHT TO ACCESS PRIVILEGED INFORMATION
VIA A MOTION FOR IN CAMERA REVIEW, THAT RIGHT WOULD NEED TO BE
BALANCED AGAINST WIS. STAT. § 905.04, THE PRIVILEGE STATUTE.
¶56 We have concluded that a defendant has no Sixth or

Fourteenth Amendment right to access privileged information via

a motion for in camera review. However, even if there were such

a right, that right would still need to be balanced against Wis.

Stat. § 905.04, the privilege statute. We would analogize this

case, which involves access to information, to cases involving

the presentation of evidence at trial. We do so because even if

a defendant cannot gain pre-trial access to information, the

defendant may still seek to present evidence (in the form of the

complainant's testimony) at trial. See Goldsmith v. State, 651

A.2d 866, 874 (Md. 1995) (distinguishing between a defendant's

26
Other states have reached the same conclusion. See, e.g.,
Indiana v. Fromme, 949 N.E.2d 789 (Ind. 2011); People v. Hammon,
938 P.2d 986 (Cal. 1997); Dill v. People, 927 P.2d 1315 (Colo.
1996); State v. Percy, 548 A.2d 408 (Vt. 1988); Commonwealth v.
Wilson, 602 A.2d 1290 (Pa. 1992); United States v. Shrader, 716
F.Supp 2d 464 (S.D. W. Va. 2010); New Jersey v. E.P., 559 A.2d
447 (N.J. Super. Ct. App. Div. 1989) (holding that the defendant
had no right to in camera review of information protected by
attorney-client privilege).

44
 No. 2011AP2680-CR

right of access to information during pre-trial discovery and a

defendant's right at trial to present a defense).

¶57 The Supreme Court of the United States has recognized

"the right of the defendant to present evidence." Taylor v.

Illinois, 484 U.S. 400, 409 (1988) (emphasis added). In

Washington v. Texas, 388 U.S. 14 (1967), the Court stated,

The right to offer the testimony of witnesses, and to
compel their attendance, if necessary, is in plain
terms the right to present a defense, the right to
present the defendant's version of the facts as well
as the prosecution's to the jury so it may decide
where the truth lies. Just as an accused has the right
to confront the prosecution's witnesses for the
purpose of challenging their testimony, he has the
right to present his own witnesses to establish a
defense. This right is a fundamental element of due
process of law.
Id. at 19. However, the Court has also recognized that a

defendant "does not have an unfettered right to offer testimony

that is incompetent, privileged, or otherwise inadmissible under

standard rules of evidence." Taylor, 484 U.S. at 410 (emphasis

added). Accordingly, a defendant's right to present evidence
must be balanced against other considerations. See Rock v.

Arkansas, 483 U.S. 44, 55-56 (1987) ("Of course, the right to

present relevant testimony is not without limitation. The right

'may, in appropriate cases, bow to accommodate other legitimate

interests in the criminal trial process.'" (quoting Chambers v.

Mississippi, 410 U.S. 284, 295 (1973)).

45
 No. 2011AP2680-CR

¶58 Over a series of cases,27 the Supreme Court has

developed a test for determining when a defendant's right to

present evidence is violated: "[T]he exclusion of defense

evidence abridge[s] an accused's right to present a defense

'where the restriction is arbitrary or disproportionate to the

purposes' [it is] designed to serve, and the evidence

implicate[s] a sufficiently weighty interest of the accused."

Harris v. Thompson, 698 F.3d 609, 626 (7th Cir. 2012)

(alterations in original) (quoting United States v. Scheffer,

523 U.S. 303, 308-09 (1998) (quoting Rock, 483 U.S. at 56)).

¶59 For instance, in Washington v. Texas, the Court struck

down a state statute that barred the introduction of an alleged

accomplice's testimony. In declaring the statute

unconstitutional, the Court called the rule "arbitrary,"

27
See Washington v. Texas, 388 U.S. 14, 22-23 (1967)
(striking down an "arbitrary" law that disqualified an alleged
accomplice from testifying on the behalf of the defendant);
Chambers v. Mississippi, 410 U.S. 284, 296 n.8, 302 (1973)
(striking down a "archaic, irrational, and potentially
destructive" common-law rule that prevented the defendant from
impeaching his own witness); Rock v. Arkansas, 483 U.S. 44, 55,
61 (1987) (applying the arbitrary and disproportionate test, and
striking down a "per se" rule that excluded the defendant's
hypnotically refreshed testimony because the rule "arbitrarily"
excluded material evidence and because the State had not
"justified the exclusion of all of [the] defendant's
testimony"); Taylor v. Illinois, 484 U.S. 400, 414-16 (1988)
(applying the arbitrary and disproportionate test, and upholding
the trial judge's determination that the appropriate sanction
for the defendant's discovery violation was to exclude the
witness's testimony); Holmes v. South Carolina, 547 U.S. 319,
330-31 (2006) (applying the arbitrary and disproportionate test,
and striking down the State's rule barring third-party guilt
evidence).

46
 No. 2011AP2680-CR

specifically commenting that "[t]he rule disqualifying an

alleged accomplice from testifying on behalf of the defendant

cannot even be defended on the ground that it rationally sets

apart a group of persons who are particularly likely to commit

perjury." Washington v. Texas, 388 U.S. at 22 (emphasis added).

Accordingly, the Court held that the statute "arbitrarily denied

[the defendant] the right to put on the stand a witness who was

physically and mentally capable of testifying to events that he

had personally observed, and whose testimony would have been

relevant and material to the defense." Id. at 23 (emphasis

added). In a footnote, the Court was careful to clarify that

"[n]othing in [its] opinion should be construed as disapproving

testimonial privileges, . . . which are based on entirely

different considerations . . . ." Id. at 23 n.21.

¶60 Chambers v. Mississippi serves as another example. In

Chambers, the Court analyzed Mississippi's common-law rule that

"a party may not impeach his own witness." 410 U.S. at 295. The

Court evaluated the basis for such a rule: "The rule rests on
the presumption——without regard to the circumstances of the

particular case——that a party who calls a witness 'vouches for

his credibility.'" Id. at 295 (citation omitted). As part of its

analysis, the Court remarked that the rule had been condemned by

other sources as "archaic, irrational, and potentially

destructive of the truth-gathering process." Id. at 296 n.8.

Moreover, the Court took notice of the fact that "Mississippi

ha[d] not sought to defend the rule or explain its rationale.
Nor ha[d] it contended that its rule should override the
47
 No. 2011AP2680-CR

accused's right of confrontation." Id. at 297. As a result, the

Court concluded that the State's rule denied the defendant an

opportunity to present a complete defense. Id. at 302-03.

¶61 To summarize, the "mere invocation" of a

constitutional right "cannot automatically and invariably

outweigh countervailing public interests." Taylor, 484 U.S. at

414. Thus, a defendant's right to present a meaningful defense

is violated only when a rule or statute infringes upon a

"weighty interest of the accused" and is "arbitrary" or

"disproportionate to the purpose[] [it is] designed to serve."

Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotation

marks omitted) (quoting Scheffer, 523 U.S. at 308).

¶62 Here, Wis. Stat. § 905.04, the privilege statute, is

neither arbitrary nor disproportionate to the purpose it is

designed to serve. We have stressed that the "public policy

underpinning the privilege is to encourage patients to freely

and candidly discuss medical concerns with their physicians by

ensuring that those concerns will not unnecessarily be disclosed
to a third person." Steinberg v. Jensen, 194 Wis. 2d 439, 459,

534 N.W.2d 361 (1995).28

28
One court has noted,

The rationale for the psychologist-client privilege
was cogently stated in an Advisory Committee Note to
Proposed Federal Rule of Evidence 504:

Among physicians, the psychiatrist has a special need
to maintain confidentiality. His capacity to help his
patients is completely dependent upon their
willingness and ability to talk freely. This makes it
(continued)
48
 No. 2011AP2680-CR

¶63 Additionally, the Supreme Court of the United States

has recognized a federal psychotherapist privilege. Jaffee v.

Redmond, 518 U.S. 1, 18 (1996). Throughout its opinion adopting

the privilege, the Court strongly emphasized the importance of

such a privilege:

Effective psychotherapy, by contrast, depends upon an
atmosphere of confidence and trust in which the
patient is willing to make a frank and complete
disclose of facts, emotions, memories, and fears.
Because of the sensitive nature of the problems for
which individuals consult psychotherapists, disclosure
of confidential communications made during counseling
sessions may cause embarrassment or disgrace. For this
reason, the mere possibility of disclosure may impede
development of the confidential relationship necessary
for successful treatment.
Id. at 10 (emphasis added). Moreover, the Court stressed,

difficult if not impossible for him to function
without being able to assure his patients
confidentiality and, indeed, privileged communication.
Where there may be exceptions to this general
rule . . . , there is wide agreement that
confidentiality is a sine qua non for successful
psychiatric treatment. The relationship may well be
likened to that of the priest-penitent or the lawyer-
client. Psychiatrists not only explore the very depths
of their patient's conscious, but their unconscious
feelings and attitudes as well. Therapeutic
effectiveness necessitates going beyond a patient's
awareness and, in order to do this, it must be
possible to communicate freely. A threat to secrecy
blocks successful treatment.

Commonwealth v. Kyle, 533 A.2d 120, 126 (Pa. Super Ct. 1987)
(alterations in original) (quoting Report No. 45, Group for the
Advancement of Psychiatry 92 (1960), quoted in Advisory
Committee's Notes to Proposed Rules, 56 F.R.D. at 242); see also
Commonwealth v. Wilson, 602 A.2d 1290, 1295 (Pa. 1992) (citing
Kyle and approving of its holding).

49
 No. 2011AP2680-CR

Making the promise of confidentiality contingent upon
a trial judge's later evaluation of the relative
importance of the patient's interest in privacy and
the evidentiary need for disclosure would eviscerate
the effectiveness of the privilege. As we explained in
[another case], if the purpose of the privilege is to
be served, the participants in the confidential
conversation "must be able to predict with some degree
of certainty whether particular discussions will be
protected. An uncertain privilege, or one which
purports to be certain but results in widely varying
applications by the courts, is little better than no
privilege at all."
Id. at 17-18 (emphasis added) (quoting Upjohn Co. v. United

States, 449 U.S. 383, 393 (1981)). In short, Wis. Stat.

§ 905.04, the privilege statute, serves the crucial purpose of

ensuring that individuals——especially individuals who may be

suffering as a result of a traumatic experience, like sexual

assault——can freely and openly communicate with and be treated

by their mental health provider. See United States v. Shrader,

716 F. Supp. 2d 464, 473 (S.D. W. Va. 2010) ("[F]or [this

victim] and other alleged stalking victims to have to choose

whether to obtain counseling knowing that their alleged stalkers

can subpoena the records thereof would be no choice at all. This
chilling effect is precisely what the Supreme Court foresaw and

explicitly rejected in Jaffee.").29 Accordingly, § 905.04, the

29
See also State v. Percy, 548 A.2d 408, 415 (Vt. 1988)
("We are particularly solicitous of the need of a victim of a
sexual assault to seek and receive mental health counseling
without fear that her statements will end up in the public
record . . . . We are unwilling to require the victim to forego
counseling or risk disclosure absent the most compelling
justification——none has been asserted here.").

50
 No. 2011AP2680-CR

privilege statute, is not arbitrary or disproportionate to the

purpose it was designed to serve.

F. THE SIMPLE REMEDY IF THE PEOPLE OF WISCONSIN WANT A BALANCING
TEST: HAVE THE LEGISLATURE AMEND WIS. STAT. § 905.04 TO INCLUDE
AN EXCEPTION.
¶64 Over the years, the Legislature has amended Wis. Stat.

§ 905.04, the privilege statute, numerous times, so the

Legislature can, if it wants, amend § 905.04 to include a

Shiffra/Green-like balancing test. Thus, should our

interpretation and application of § 905.04 and the Constitution

represent an "undesired result, the legislature may rectify the

situation" by amending § 905.04 to include a Shiffra/Green-like

balancing test as an exception to the general privilege rule.

Hamilton v. Hamilton, 2003 WI 50, ¶49, 261 Wis. 2d 458, 661

N.W.2d 832.

¶65 For example, Iowa's privilege statute contains a

Shiffra/Green-like exception to its general privilege rule. Iowa

Code § 622.10(4) states,

a. Except as otherwise provided in this subsection,
the confidentiality privilege under this section shall
be absolute with regard to a criminal action and this
section shall not be construed to authorize or require
the disclosure of any privileged records to a
defendant in a criminal action unless either of the
following occur:

(1) The privilege holder voluntarily waives the
confidentiality privilege

(2)(a) The defendant seeking access to privileged
records under this section files a motion
demonstrating in good faith a reasonable probability
that the information sought is likely to contain
exculpatory information that is not available from any

51
 No. 2011AP2680-CR

other source and for which there is a compelling need
for the defendant to present a defense in the case.
Such a motion shall be filed not later than forty days
after arraignment under seal of the court. Failure of
the defendant to timely file such a motion constitutes
a waiver of the right to seek access to privileged
records under this section, but the court, for good
cause shown, may grant relief from such a waiver.

(b) Upon a showing of reasonable probability that
the privileged records sought may likely contain
exculpatory information that is not available from any
other source, the court shall conduct an in camera
review of such records to determine whether
exculpatory information is contained in such records.

(c) If exculpatory information is contained in
such records, the court shall balance the need to
disclose such information against the privacy interest
of the privilege holder.

(d) Upon the court's determination, in writing,
that the privileged information sought is exculpatory
and that there is a compelling need for such
information that outweighs the privacy interest of the
privilege holder, the court shall issue an order
allowing the disclosure of only those portions of the
records that contain the exculpatory information. The
court's order shall also prohibit any further
dissemination of the information to any person, other
than the defendant, the defendants' attorney, and the
prosecutor, unless otherwise authorized by the court.

b. Privileged information obtained by any means other
than as provided in paragraph "a" shall not be
admissible in any criminal action.
In simpler terms, Iowa allows a defendant to make a motion

"demonstrating in good faith a reasonable probability that the

information sought is likely to contain exculpatory information

that is not available from any other source and for which there

is a compelling need for the defendant to present a defense in
the case." Iowa Code § 622.10(4)(2)(a). If the defendant meets

52
 No. 2011AP2680-CR

the requisite showing, "the court shall conduct an in camera

review of such records to determine whether exculpatory

information is contained in such records." Iowa Code

§ 622.10(4)(2)(b). Should the in camera review of the records

reveal exculpatory information, the court must next "balance the

need to disclose such information against the privacy interest

of the privilege holder." Iowa Code § 622.10(4)(2)(c). If "there

is a compelling need for such information that outweighs the

privacy interest of the privilege holder," then the court must

"issue an order allowing the disclosure of only those portions

of the records that contain the exculpatory information." Iowa

Code § 622.10(4)(2)(d).

¶66 In short, even though there is no constitutional basis

for Shiffra/Green, the Legislature could, if it wanted to, give

a defendant access to privileged information by following Iowa's

lead and amending Wisconsin's privilege statute.30 See Bostco LLC

v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶61, 350

Wis. 2d 554, 835 N.W.2d 160 ("When a statute [does not] to
address a particular situation, the remedy for the omission does

not lie with the courts. It lies with the legislature.").

G. THE OPPORTUNITY TO PRESENT A MEANINGFUL DEFENSE.

¶67 Before we conclude, we note that defendants will

certainly have an opportunity to present a meaningful defense

30
In addition to Iowa, Kentucky and Massachusetts have some
type of exception that would allow a court to conduct an in
camera review of a person's privileged mental health treatment
records. See Ky. R. Evid. 506(d)(2); Mass. R. Evid. 503(d)(8).

53
 No. 2011AP2680-CR

without having access to privileged information via a motion for

in camera review.

¶68 First, all defendants are presumed innocent until

proven guilty. Taylor v. Kentucky, 436 U.S. 478, 483 (1978)

("The principle that there is a presumption of innocence in

favor of the accused is the undoubted law, axiomatic and

elementary, and its enforcement lies at the foundation of the

administration of our criminal law." (quoting Coffin v. United

States, 156 U.S. 432, 453 (1895)).

¶69 Second, all defendants have the right to physically

confront and cross-examine witnesses as well as have the right

to compel the attendance of witnesses at trial. See Ritchie, 480

U.S. at 51; Washington v. Texas, 388 U.S. at 19.

¶70 Third, the prosecutor and those acting on behalf of

the prosecution have a constitutionally-mandated duty to

disclose to the defendant exculpatory evidence under Brady. See

Brady, 373 U.S. at 87.

¶71 Fourth, a defendant could call other witnesses and
have them testify about the complainant's character for

truthfulness. See Wis. Stat. § 906.08 ("Except as provided in s.

972.11(2), the credibility of a witness may be attacked or

supported by evidence in the form of reputation or opinion, but

subject to the following limitations: (a) The evidence may refer

only to character for truthfulness or untruthfulness. . . . ").

¶72 Finally, Wisconsin and many other states have

mandatory reporting laws. See Wis. Stat. § 48.981(2). These laws
mandate that certain persons who have contact with a child
54
 No. 2011AP2680-CR

report abuse. Id. For example, § 48.981(2m)(c)-(d), requires a

"health care provider who provides any health care services to a

child" or a "person who obtains information about a child who is

receiving or has received health care services from a health

care provider" to "report as required . . . if he or she has any

reason to suspect . . . [t]hat the child, because of his or her

age or immaturity, was or is incapable of understanding the

nature or consequences of sexual intercourse or sexual contact."

A defendant could ask a treatment provider who would have been

subject to the mandatory reporting requirement if he or she ever

reported the defendant to the authorities. In short, defendants,

including Lynch, have many other means by which to cast doubt on

a complainant's allegations and the State's case, thereby

affording defendants the opportunity to present a meaningful

defense.31

31
It is true that there are occasions when a defendant is
wrongfully accused of committing a crime, including a sexual
assault, and we realize that this is an emotionally appealing
argument that favors the dissent's position. This kind of
emotional appeal is heightened when members of this court use
inflammatory rhetoric.

Regardless, we expect the criminal justice system to
function as it is supposed to by weeding out occasions of false
accusations. This is why we have an abundance of constitutional
safeguards, such as the presumption of innocence, the right to
confront and cross examine witnesses, and the Brady requirement.
We have never before allowed the hypothetical idea that someone
might be wrongfully accused to obliterate our rules of evidence
(for example, hearsay) or our other privileges (for example, the
lawyer-client privilege). See Kyle, 533 A.2d at 131 n.15 ("We
note parenthetically that permitting in camera review of
information protected by the absolute privilege between
psychologist and client could possibly render other absolute
(continued)
55
 No. 2011AP2680-CR

privileges subject to the same limitation."). Simply put, we do
not toss out our constitution, our rules, or our statutes solely
because a defendant might be wrongly accused; rather, we rely on
our criminal justice system and its adversarial process to
remove erroneous cases, including erroneous sexual assault
cases.

In cases like this one, neither the prosecutor nor the
defendant has access to a complainant's privileged mental health
treatment records. Accordingly, "[T]he privilege does not
unfairly place the defense in a disadvantageous position; like
the defense, the prosecution does not have access to the
[privileged] file and, thus, cannot use the information to make
its case." Kyle, 533 A.2d at 130; see State v. Maday, 179
Wis. 2d 346, 370-71, 507 N.W.2d 365 (Ct. App. 1993) ("A
defendant who is prevented from presenting testimony from an
examining expert when the state is able to present such
testimony is deprived of a level playing field. '[A] State may
not legitimately assert an interest in maintenance of a
strategic advantage over the defense, if the result of that
advantage is to cast a pall on the accuracy of the verdict
obtained.'" (emphasis added) (alteration in original) (quoting
Ake v. Oklahoma, 470 U.S. 68, 79) (1985))). Indeed, if the
prosecution had access, it may need to disclose the records
pursuant to Brady.

Brady is the reason Lynch already has access to some of the
complainant's mental health treatment records. Prior to the
complainant's father's trial, the complainant waived her
privilege, which allowed the State to obtain certain mental
health treatment records to prosecute her father. In the present
case, the State turned over all of the mental health treatment
records it had in its possession from when it prosecuted the
complainant's father.

Let us be clear: in this case, we do nothing more than
decline to create a constitutional right. We leave the question
of whether a Shiffra/Green-like exception to the privilege
statute is right for Wisconsin to the Legislature, which may, if
so inclined, create an exception to the statute it has amended
numerous times. Similarly, we leave the question of whether
there is a constitutional right to access privileged information
to the Supreme Court of the United States, which may, if so
inclined, declare that a constitutional right to this type of
information exists.

56
 No. 2011AP2680-CR

III. CONCLUSION

¶73 To briefly summarize, we conclude that Lynch has no

right to access privileged information via a motion for in

camera review. 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. Rather, his

right would need to be balanced against the privilege statute.

The Supreme Court of the United State's balancing test for

presentation of evidence cases instructs us to consider whether

the statute at hand is arbitrary or disproportionate to the

purpose it is designed to serve. Here, the privilege statute is

neither arbitrary nor disproportionate as it protects the free

flow of open and honest communication between a patient and his

or her physician. For these reasons, we would overrule

Shiffra/Green and its progeny.

By the Court.—As a result of a divided court, the law

remains as the court of appeals has articulated it.

57
 No. 2011AP2680-CR.pdr

¶74 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). The

writing of Justice Shirley S. Abrahamson and Justice Ann Walsh

Bradley herein causes concern because it diminishes the

significant and sensitive issues for which review was granted;

attempts to demean the writings of other justices rather than

addressing legal reasoning they employ; and may evidence a

pattern of joint writing that is bottomed in a desire to injure

rather than to inform.

¶75 In this review, the court is faced with deciding

competing legal issues: Lynch's alleged constitutional right to

obtain the complainant's mental health treatment records to

defend against charges of sexual assault; the complainant's

privilege to withhold confidential mental health treatment

records; precedent that would bar the complainant from

testifying against Lynch if she does not waive the privilege she

holds in regard to her mental health treatment records; and

whether that precedent should be followed or modified. Justice

David Prosser, Justice Annette Ziegler and Justice Michael
Gableman have addressed these complex issues in various ways.

¶76 Justice Abrahamson and Justice A.W. Bradley

characterize their writings as "the Twilight Zone" and "the

court's imaginative zone." This defamatory labeling of

colleagues' writings does not address the legal issues the

parties asked us to review. However, it is the type of comment

that the press will seize upon and report over and over again.

Justice Abrahamson and Justice A.W. Bradley know what the press

1
 No. 2011AP2680-CR.pdr

will do. They even cite to the 1959 television program to aid

the press in reporting their comments.

¶77 More importantly however, Justice Abrahamson's and

Justice A.W. Bradley's defamatory labeling of colleagues'

writings demonstrates a lack of respect for the very serious

constitutional and sensitive personal issues presented by the

parties who sought our review: a woman who claims repeated

sexual assault at the hands of Lynch and Lynch's claim that he

cannot adequately defend against her allegations without her

mental health treatment records.

¶78 None of the issues before us has anything to do with

the Twilight Zone or any other zone. Rather, they are

significant and complex issues that the court has repeatedly

struggled to address. See State v. Johnson, 2013 WI 59, 348

Wis. 2d 450, 832 N.W.2d 609 (per curiam); State v. Johnson, 2014

WI 16, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam) (opinion on

reconsideration).

¶79 And finally, Justice Abrahamson's and Justice A. W.
Bradley's combined writing herein may evince a pattern, wherein

they combine to mount personal attacks on colleagues, rather

than attacking reasoning other justices employ when deciding

issues presented to the court for review. See St. Croix Cty. v.

Michael D., 2016 WI 35, ¶53, 368 Wis. 2d 170, __ N.W.2d __

(Roggensack, C.J., concurring). Because transparency is helpful

to the reader, I write separately and also join the lead

opinion.

2
 No. 2011AP2680-CR.ssa & awb

¶80 SHIRLEY S. ABRAHAMSON & ANN WALSH BRADLEY,

JJ. (concurring in part, dissenting in part). The petitioner,

State of Wisconsin, seeks review of a court of appeals' decision

that affirmed the circuit court's determinations: (1) that the

defendant made a sufficient showing entitling him to an in

camera review of the complainant's privileged mental health

treatment records; and (2) that the exclusive remedy for refusal

to disclose those records is witness preclusion.

¶81 We would affirm that part of the court of appeals'

decision that concluded, adhering to State v. Shiffra, 175

Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green,

2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, that the defendant

made a sufficient showing entitling him to an in camera review

of the complainant's privileged mental health records.

¶82 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.

¶83 In discussing these issues, we focus on the "lead

opinion" of Justice Michael J. Gableman (joined by two other

justices) even though it does not represent the views of a

majority of the justices. Indeed, Justice Gableman's opinion

disagrees with the mandate (the result) stated in his opinion.

The mandate affirms the court of appeals, and a majority of the
court would affirm, at least in part, the decision of the court

1
 No. 2011AP2680-CR.ssa & awb

of appeals. Contrary to the mandate, Justice Gableman's

analysis and conclusion would reverse the decision of the court

of appeals.

¶84 The implications of mislabeling Justice Gableman's

three justice opinion as a "lead opinion" will be discussed

further below.

¶85 For the reasons set forth, we concur in part, dissent

in part, and write separately in an effort to explain what the

court does (and does not do) in this case.

I

¶86 In this case we are asked to consider whether a

defendant upon a sufficient showing can obtain disclosure of a

witness's mental health records when it is necessary for his or

her defense via a motion for in camera review. This is not a

new question unaddressed by Wisconsin precedent.

¶87 In State v. Shiffra, 175 Wis. 2d 600, 605, 499

N.W.2d 719 (Ct. App. 1993), the court of appeals determined that

a defendant is entitled to an in camera review of mental health
treatment records once the defendant makes a preliminary showing

that the sought-after evidence is material to his or her

defense. This court adopted Shiffra, with some modification, in

State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298.1

1
Green clarified that for an in camera review the defendant
must make a preliminary showing that there is "a reasonable
likelihood that the records contain relevant information
necessary to a determination of guilt or innocence and is not
merely cumulative to other evidence available to the defendant."
State v. Green, 2002 WI 68, ¶34, 253 Wis. 2d 356, 646
N.W.2d 298.

2
 No. 2011AP2680-CR.ssa & awb

¶88 Wisconsin courts have relied on Shiffra for decades.

See, e.g., Johnson v. Rogers Mem'l Hosp., Inc., 2005 WI 114,

¶¶72-73, 283 Wis. 2d 384, 700 N.W.2d 27; State v. Allen, 2004 WI

106, ¶31, 274 Wis. 2d 568, 682 N.W.2d 433; State v. Solberg, 211

Wis. 2d 372, 386-87, 564 N.W.2d 775 (1997). Given that

reliance, extra weight must be accorded to the principle of

stare decisis (stand by things decided).

¶89 Yet, Justice Gableman's opinion would overrule this

long-standing precedent.2 The lengthy discussion of why Justice

Gableman's opinion would overrule Shiffra relegates Wisconsin's

jurisprudence on stare decisis to a footnote. This doctrine is

a necessary part of any analysis that attempts to justify

overruling a case that has been relied on for decades and cited

approximately 90 times by state courts (including Wisconsin

courts).

¶90 Further, the premise of Justice Gableman's opinion

that there is no constitutional right to access information in

criminal cases is a flawed overgeneralization. Justice
Gableman's op., ¶¶47, 55. It serves as a spring board enabling

Justice Gableman's opinion to reach an erroneous conclusion that

there is no constitutional basis for allowing a defendant access

to a complainant's mental health records.

¶91 Finally, Justice Gableman's opinion ignores a canon of

statutory construction, requiring statutes addressing the same

2
Only three justices voted to overrule the Shiffra/Green
procedure. Because we are unable to reach a consensus, the
decision of the court of appeals stands.

3
 No. 2011AP2680-CR.ssa & awb

subject to be interpreted such that both statutes are operative.

Rather than reading the statutes to give legal effect to both,

Justice Gableman's opinion's analysis considers only one

statute, allowing it to reach its conclusion that the

Shiffra/Green procedure "cannot be grounded in any other legal

basis." Justice Gableman's op., ¶8.

¶92 Contrary to Justice Gableman's opinion, neither we nor

a majority of the court would discard our long-standing

precedent so easily. The Shiffra/Green procedure is a

reasonable answer to the difficult issue of how to balance

multiple competing interests. Although we concur believing that

Shiffra should be upheld, we yet again caution that Shiffra's

remedies are not limited to witness preclusion. Accordingly, we

respectfully dissent in part.

II

¶93 Absent from Justice Gableman's opinion is an analysis

of Wisconsin's jurisprudence on stare decisis. Instead, its

discussion of stare decisis focuses on quotations from the
United States Supreme Court. Justice Gableman's op., ¶39 n.18.

However, this court has provided more detailed guidance on how

stare decisis applies in our state. It has repeatedly explained

that the principle requires "special justification" to overrule

past decisions. See, e.g., State v. Luedtke, 2015 WI 42, ¶40,

362 Wis. 2d 1, 863 N.W.2d 592; State v. Young, 2006 WI 98, ¶51,

294 Wis. 2d 1, 717 N.W.2d 729; Bartholomew v. Wis. Patients

Comp. Fund, 2006 WI 91, ¶32, 293 Wis. 2d 38, 717 N.W.2d 216.

4
 No. 2011AP2680-CR.ssa & awb

¶94 We have indicated that the reasons for departing from

stare decisis typically include: "changes or developments in

the law that undermine the rationale behind a decision"; "the

need to make a decision correspond to newly ascertained facts";

"a showing that a decision has become detrimental to coherence

and consistency in the law"; "a showing that a decision is

unsound in principle"; and "a showing that a decision is

unworkable in practice." Young, 294 Wis. 2d 1, ¶51 n.16 (citing

Johnson Controls, Inc. v. Emp'rs. Ins., 2003 WI 108, ¶¶98-99,

264 Wis. 2d 60, 665 N.W.2d 257).

¶95 The body of Justice Gableman's opinion does not point

to any of these reasons for departing from stare decisis, rather

it explains that it would overrule Shiffra because Shiffra

relied on Pennsylvania v. Ritchie, 480 U.S. 39 (1987), a case

involving distinguishable circumstances. Justice Gableman's

opinion asserts that Ritchie is an "untenable foundation" for

Shiffra's procedure and "never should have been stretched to

cover privileged records held by agencies far removed from
investigative and prosecutorial functions." Justice Gableman's

op., ¶¶36, 39. In a footnote, it adds that Shiffra is unsound

in principle. Id., ¶39 n.19.

¶96 We cannot agree that the Shiffra court's decision to

extend United States Supreme Court precedent to a somewhat

analogous situation is "untenable" or "unsound." As detailed in

Justice Ziegler's "dissent" and discussed in Justice Prosser's

"dissent," Ritchie does not foreclose its application to a

5
 No. 2011AP2680-CR.ssa & awb

broader set of circumstances. Justice Ziegler's "dissent,"

¶¶28-33; Justice Prosser's "dissent," ¶¶7-8.

¶97 This point is underscored by the fact that Shiffra's

approach was not unique. Several courts have extended Ritchie's

holding to mental health records kept by private entities. See,

e.g., State v. Kelly, 545 A.2d 1048, 1056 (Conn. 1988); Burns v.

State, 968 A.2d 1012, 1024 (Del. 2009); People v. Bean, 560

N.E.2d 258, 273 (Ill. 1990); Commonwealth v. Barroso, 122

S.W.3d 554, 564 (Ky. 2003); Cox v. State, 849 So. 2d 1257, ¶53

(Miss. 2003); State v. Cressey, 628 A.2d 696, 703-04 (N.H.

1993); State v. Rehkop, 908 A.2d 488, 495-96 (Vt. 2006); Gale v.

State, 792 P.2d 570, 581 (Wyo. 1990).

¶98 Given that Wisconsin courts have relied on Shiffra for

decades, extra weight must be accorded to the principle of stare

decisis. The factual distinctions between Ritchie and Shiffra

fall short of its special justification requirement.

¶99 Perhaps Justice Gableman's opinion omits an analysis

of Wisconsin's jurisprudence on stare decisis because it would
inexorably lead to a different conclusion. In essence, Justice

Gableman's opinion is anchored to the belief that Shiffra was

wrongly decided.

¶100 Stare decisis has been heralded as a cornerstone of

this state's jurisprudence since our earliest days of statehood.

In 1859 the Wisconsin Supreme Court declared: "Stare decisis is

the motto of courts of justice." Ableman v. Booth, 11

Wis. (*498) 517, (*522) 541 (1859).

6
 No. 2011AP2680-CR.ssa & awb

¶101 The doctrine requires fidelity to the rule of law.

Because Shiffra is well-established precedent, the question is

not who has the better argument today but "whether today's

["lead opinion"] has come forward with the type of extraordinary

showing that this court has historically demanded before

overruling one of its precedents." Payne v. Tennessee, 501 U.S.

808, 848 (1991) (Marshall, J., dissenting). The answer is

clear: it has not.

¶102 Nothing of legal consequence has changed since

Shiffra. The only change has been in the composition of the

court.

III

¶103 Justice Gableman's opinion also errs by making

overgeneralized statements about a defendant's right to access

information in order to claim that there is no constitutional

basis for allowing a defendant access to mental health treatment

records. It broadly provides that there is no constitutional

right to access information in criminal cases. Justice
Gableman's op., ¶¶47, 55. Further, it claims that "a defendant

is entitled to access information only to the extent outlined in

Wis. Stat. § 971.23, our criminal discovery statute." Justice

Gableman's op., ¶47; see also Justice Gableman's op., ¶54

("Discovery is purely statutory").

¶104 These statements overlook past precedent discussing

criminal defendants' due process rights. In State v. Maday, the

court held that "pretrial discovery is a fundamental due process
right." Maday, 179 Wis. 2d 346, 354, 507 N.W.2d 365 (Ct. App.

7
 No. 2011AP2680-CR.ssa & awb

1993). That case considered whether a defendant could require a

victim to undergo a pretrial psychological evaluation when the

state gives notice that it intends to introduce evidence

generated by an exam of the victim by its own experts.3 The

court answered this question in the affirmative. It explained

that due process accords a defendant the opportunity to give

relevant evidence at trial and a defendant could not do so

without having the opportunity to first discover it.4

¶105 This court quoted Maday with approval in State v.

Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457. Schaefer

agreed that "[p]roviding a defendant with meaningful pretrial

discovery underwrites the interest of the state in guaranteeing

that the quest for the truth will happen during a fair trial."5

3
State v. Maday, 179 Wis. 2d 346, 349, 507 N.W.2d 365 (Ct.
App. 1993).
4
Maday, 179 Wis. 2d at 357.
5
State v. Schaefer, 2008 WI 25, ¶23, 308 Wis. 2d 279, 746
N.W.2d 457 (quoting Maday, 179 Wis. 2d at 354-55) (emphasis
omitted).

Curiously, Justice Gableman's opinion cites Schaefer as a
basis for its statement that "a defendant is entitled to access
information only to the extent outlined in Wis. Stat. § 971.23."
Justice Gableman's op., ¶47. However, the comments in Schaefer
referenced by Justice Gableman's opinion were made in the
context of discussing whether there is a right to discovery
prior to a preliminary examination. Because the constitutional
right to compulsory process applies to trials and not
preliminary examinations, it determined that Wis. Stat.
§ 971.23(1) (requiring the prosecution to provide discovery
materials within a reasonable time before trial) and Wis. Stat.
§ 971.31(5)(b) (barring discovery motions at preliminary
examinations and prior to the filing of an information)
governed.

8
 No. 2011AP2680-CR.ssa & awb

¶106 Similar sentiments were expressed in State v.

Migliorino, 170 Wis. 2d 576, N.W.2d 678 (Ct. App. 1992). In

that case the defendant had been charged with trespass to a

medical facility, which required a showing that the entry

"tend[ed] to create or provoke a breach of the peace."6 The

defendant sought the identities of the patients present when she

entered the facility in order to dispute that element of the

charge. Thus, the issue before the court was whether a

defendant had the right to discover the identity of the

patients.

¶107 The court observed that the compulsory process right,

is "in plain terms the right to present a defense."7 That right,

in turn, "is fundamental to due process."8 Accordingly, it

explained that "[t]he concomitant issue of access to the

identity of witnesses, as to whom the compulsory-process right

would apply, is generally analyzed against the framework of

'fundamental fairness' guaranteed by due process."9 Observing

that "[i]t would be a bizarre rule indeed that gave defendants a
compulsory-process right to call witnesses but which also

withheld from them the ability to discover the identity of those

witnesses," the Migliorino court determined that at the very

6
Migliorino, 170 Wis. 2d at 592.
7
Migliorino, 170 Wis. 2d at 586 (quoting Washington v.
Texas, 388 U.S. 14, 19 (1967)).
8
Migliorino, 170 Wis. 2d at 586.
9
Migliorino, 170 Wis. 2d at 586.

9
 No. 2011AP2680-CR.ssa & awb

least, the defendant was entitled to an in camera hearing to

determine whether any of the patients present had knowledge of

the "circumstances" of the defendant's entry.10

¶108 To be clear, this court has observed the "general

rule" that there is no "broad right of discovery" in criminal

cases. State v. Miller, 35 Wis. 2d 454, 474, 151 N.W.2d 157

(1967) (emphasis added). However, a general rule against broad

discovery does not preclude the possibility of scenarios where

defendants are entitled to information. As Maday and Migliorino

demonstrate, due process can require limited access to

information in certain circumstances. Accordingly, Justice

Gableman's opinion's premise that there is no constitutional

right to access information in criminal cases, is a flawed

overgeneralization. Justice Gableman's op., ¶¶47, 55.

IV

¶109 In addition to making overgeneralizations which

overlook Wisconsin precedent, Justice Gableman's opinion's

analysis ignores a canon of statutory construction. It is well-
established that statutes addressing the same subject should be

read in pari materia, such that both statutes are operative.

Kolupar v. Wilde Pontiac Cadillac, Inc., 2007 WI 98, ¶28, 303

Wis. 2d 258, 735 N.W.2d 93.

¶110 Yet, although Justice Gableman's opinion recognizes

that there are two related statutes at issue in this case——Wis.

Stat. § 146.82, which makes patient health care records

10
Migliorino, 170 Wis. 2d at 586, 595.

10
 No. 2011AP2680-CR.ssa & awb

confidential, and Wis. Stat. § 905.04, which accords a patient

the privilege of refusing to disclose such confidential

information——its analysis considers only the statute creating

the privilege. Justice Gableman's op., ¶¶19, 56-63.

¶111 Our precedent is clear that these two statutes must be

interpreted together. We have explained that the principle of

in pari materia applies because together the statutes "represent

a collective statement as to the reach and limits of the

confidentiality and privilege which attach to [health care]

records or communications." State v. Denis L.R., 2005 WI 110,

¶57 n.21, 283 Wis. 2d 358, 699 N.W.2d 154 (quoting State v.

Allen, 200 Wis. 2d 301, 309, 546 N.W.2d 517 (Ct. App. 1996));

see also Johnson v. Rogers Mem'l Hosp., 283 Wis. 2d 384, ¶36;

Justice Prosser's "dissent," ¶12.

¶112 Although Wis. Stat. § 905.04 does not include an

exception to the privilege permitting access to mental health

records when they are necessary for a defense, such an exception

can be found in the confidentiality statute. Wisconsin Stat.
§ 146.82(2)(a)4. provides that patient health care records shall

be released "[u]nder a lawful order of a court of record."

Nowhere does Justice Gableman's opinion discuss this language or

how it should be interpreted alongside the privilege statute so

that it still has meaning. Without such an analysis, Justice

Gableman's opinion is incomplete.

V

¶113 Contrary to Justice Gableman's opinion, we would not
overrule Shiffra. There are strong interests implicated when a

11
 No. 2011AP2680-CR.ssa & awb

defendant seeks a witness's mental health treatment records.

For defendants, it is the interest in being able to present a

complete defense. See Holmes v. South Carolina, 547 U.S. 319,

324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)

("Whether rooted directly in the Due Process Clause of the

Fourteenth Amendment or in the Compulsory Process or

Confrontation Clauses of the Sixth Amendment, the Constitution

guarantees criminal defendants 'a meaningful opportunity to

present a complete defense.'")); State v. Behnke, 203

Wis. 2d 43, 56, 553 N.W.2d 265 (Ct. App. 1996) ("[T]he Due

Process Clause guarantees the defendant a right to a trial based

on truth seeking which can only be accomplished by allowing him

or her to present a complete defense.").

¶114 At the same time, patients have an interest in keeping

their mental health treatment records private. Due to the

sensitive nature of the problems for which patients seek mental

health treatment, "disclosure of confidential communications

made during counseling session may cause embarrassment or
disgrace." Jaffee v. Redmond, 518 U.S. 1, 10 (1996).

Accordingly, the physician-patient privilege in Wis. Stat.

§ 905.04 was created "to encourage patients to freely and

candidly discuss medical concerns with their physicians by

ensuring that those concerns will not unnecessarily be disclosed

to a third person." Steinberg v. Jensen, 194 Wis. 2d 439, 459,

534 N.W.2d 361 (1995).

¶115 The Shiffra procedure takes both of these interests
into account and prescribes a reasonable balance. Solberg, 211

12
 No. 2011AP2680-CR.ssa & awb

Wis. 2d at 387 ("Such a procedure strikes an appropriate balance

between the defendant's due process right to be given a

meaningful opportunity to present a complete defense and the

policy interests underlying the Wis. Stat. § 904.05(2)

privilege.").

¶116 It is consistent with the approach taken by a majority
11
of state courts. They "have held that a criminal defendant,

upon a preliminary showing that the records likely contain

exculpatory evidence, is entitled to some form of pretrial

discovery of a prosecution witness's mental health treatment

records that would otherwise be subject to an 'absolute'

privilege." Barroso, 122 S.W.3d at 561. In camera judicial

review of a victim's privileged records "currently represents

the most common method of balancing statutory privileges against

the defendant's trial rights." State v. Pratt, 669 A.2d 562,

11
See e.g., D.P. v. State, 850 So. 2d 370, 373 (Ala. Crim.
App. 2002); State v. Slimskey, 779 A.2d 723, 732 (Conn. 2001);
Burns v. State, 968 A.2d 1012, 1024 (Del. 2009); Lucas v. State,
555 S.E.2d 440, 446 (Ga. 2001); People v. Bean, 560 N.E.2d 258,
273 (Ill. 1990); State v. Thompson, 836 N.W.2d 470, 486 (Iowa
2013); Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky. 2003);
State v. Johnson, 102 A.3d 295, 297 (Md. 2014); State v. Hummel,
483 N.W.2d 68, 72 (Minn. 1992); Cox v. State, 849 So. 2d 1257,
1272 (Miss. 2003); State v. Duffy, 6 P.3d 453, 458 (Mont. 2000);
State v. Gagne, 612 A.2d 899, 901 (N.H. 1992); Kinsella v.
Kinsella, 696 A.2d 556, 570 (N.J. 1997); State v. Gonzales, 912
P.2d 297, 302 (N.M. Ct. App. 1996); People v. Viera, 133
A.D.3d 622, 623 (N.Y. App. Div. 2015); State v. Burnham, 58
A.3d 889, 898 (R.I. 2013); State v. Middlebrooks, 840
S.W.2d 317, 333 (Tenn. 1992), superseded on other grounds by
Tenn. Code Ann. § 39-13-392; State v. Cramer, 44 P.3d 690, 695-
96 (Utah 2002); State v. Barbera, 872 A.2d 309, 313 (Vt. 2005);
Gale v. State, 792 P.2d 570, 581 (Wyo. 1990).

13
 No. 2011AP2680-CR.ssa & awb

571 (Conn. 1995). We see no reason to depart from our precedent

and end this practice in Wisconsin.

¶117 Because we would not overrule the Shiffra/Green

procedure, we turn to the question left unaddressed by Justice

Gableman's opinion: is witness preclusion the only remedy

available to the circuit court when a complainant refuses to

waive the physician-patient privilege?

¶118 We have addressed this issue before. When this court

granted the motion for reconsideration in State v. Johnson, we

wrote separately to explain that witness preclusion was not the

only remedy intended by the Shiffra court. 2014 WI 16, ¶19, 353

Wis. 2d 119, 846 N.W.2d 1 (Ann Walsh Bradley, J., concurring in

part, dissenting in part, joined by Abrahamson, C.J.) ("The

court in Shiffra expressly contemplated that a variety of

sanctions may be appropriate depending on the circumstances.").

¶119 In Shiffra, the court determined that it was not a

misuse of the circuit court's discretion to suppress the

victim's testimony as a sanction for her refusal to release the
records. 175 Wis. 2d at 612. Nowhere did it limit the remedies

available to witness preclusion. Rather, its language made

clear that it was discussing the facts of the case before it:

The only issue remaining is whether the trial court
misused its discretion when it suppressed Pamela's
testimony as a sanction for her refusal to release the
records. In this situation, no other sanction would be
appropriate. The court did not have the authority to
hold Pamela in contempt because she is not obligated
to disclose her psychiatric records. An adjournment in
this case would be of no benefit because the sought-
after evidence would still be unavailable. Under the
circumstances, the only method of protecting Shiffra's

14
 No. 2011AP2680-CR.ssa & awb

right to a fair trial was to suppress Pamela's
testimony if she refused to disclose her records.'
Id. (emphasis added).

¶120 The author of Shiffra later clarified that the case

did not require suppression. State v. Johnson, No. 2011AP2864-

CRAC, unpublished slip op., ¶¶23-28 (Wis. Ct. App. Apr. 18,

2012) (Brown, C.J., dissenting). He proposed an alternative

remedy, whereby "if an alleged victim refuses to release medical

or counseling records to the court for in camera inspection, the

court may compel release anyway, pursuant to Wis.

Stat.§ 146.82(2)(a)4." Id., ¶24. Acknowledging that Wis. Stat.

§ 146.82 generally will not trump the physician-patient

privilege, he explained that where the privilege is trumped by

constitutional concerns, a court may utilize Wis. Stat.

§ 146.82(2)(a)(4) in order to conduct an in camera review. Id.,

¶25.

¶121 We would adopt this approach. It harmonizes the two

statutes addressing mental health treatment records and accounts

for defendants' right to present a complete defense. Further,

it alleviates the state's concern that the Shiffra procedure

allows witnesses to thwart prosecution. By giving the court the

power to review some mental health treatment records in camera

when a defendant has established a constitutional right to that

review, Judge Brown's remedy leaves the balancing of the

competing interests in the hands of the court.

¶122 As Judge Brown observed, "[t]he courts are especially

equipped for this task. Indeed, it is what judges do."
Johnson, No. 2011AP2864-CRAC, ¶27. We agree.

15
 No. 2011AP2680-CR.ssa & awb

VI

¶123 In closing, we turn to the implications of mislabeling

Justice Gableman's three-justice opinion as a "lead opinion."

Rather than sow the seeds of confusion by issuing our opinions

seriatim with Justice Gableman's opinion occupying the "lead"

role, we should hew to our two-year-old precedent in Johnson,

353 Wis. 2d 119, ¶1 (on reconsideration). In Johnson, we

addressed almost identical factual and legal issues, and issued

a per curiam opinion stating that because the court was

deadlocked, "the court of appeals decision must be affirmed."12

¶124 Reading Justice Gableman's writing, designated as the

"lead" opinion, and reading Justice Prosser's and Justice

Ziegler's writings, self-designated (and so dubbed by Justice

Gableman) as "dissenting" opinions makes us feel like we've

stepped into "the Twilight Zone."13 As Justices Prosser and

Ziegler explain, they are dissenting because they disagree with

Justice Gableman's writing; they are not dissenting from the

court's bottom line, which affirms the decision of the court of
appeals.

¶125 All appearances to the contrary, the mandate (the

result) in this case is "the decision of the court of appeals is

affirmed." Justice Gableman's opinion, referred to as the "lead

12
State v. Johnson, 2014 WI 16, ¶1, 353 Wis. 2d 119, 846
N.W.2d 1 (on reconsideration).
13
CBS, The Twilight Zone (1959).

16
 No. 2011AP2680-CR.ssa & awb

opinion," disagrees with this result and is in reality a

dissent.14

¶126 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. 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."15

¶127 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."

¶128 In this zone of the court's imagination, Justice

Gableman's opinion (which represents the views of two other

justices, Patience Drake Roggensack and Rebecca G. Bradley) is

the "lead opinion," even though these three justices disagree

with the mandate, which leaves "the law . . . as the court of
appeals has articulated it" intact.

¶129 The court of appeals in this case followed Shiffra and

Green.16 Justice Gableman's "lead opinion," however, would

overturn Shiffra and Green.

14
Compare Justice Gableman's opinion, n.1.
15
See Justice Gableman's opinion, ¶¶16 n.15, 39 n.17 & 18,
72 n.31.
16
See State v. Lynch, 2015 WI App 2, ¶¶8, 44-45, 359
Wis. 2d 482, 859 N.W.2d 125.

17
 No. 2011AP2680-CR.ssa & awb

¶130 Normally, we have a word for opinions that do not

garner the votes of a majority of the participating justices and

disagree with the mandate of the court: We call them

"dissents." For some unstated reason, Justice Gableman does not

label his writing either a dissent or a concurrence, thus

masking its true nature.

¶131 Likewise, in the court's imaginative zone, the

opinions of Justices Prosser and Ziegler are "dissents." Yet

they agree with the outcome of this case and would affirm the

decision of the court of appeals, which followed Shiffra and

Green. We would also affirm the part of the decision of the

court of appeals that followed Shiffra and Green as well,

although we would reverse the part of the decision of the court

of appeals that held that witness preclusion is the sole remedy

available under Shiffra and Green.17

¶132 Outside this imaginative zone, we have a word for

opinions that do not garner the votes of a majority but agree

with the mandate of the court: We call them "concurrences."
¶133 For some unstated reason, this label is not applied to

Justice Prosser's and Justice Ziegler's writings.

¶134 As Justice Ziegler writes, acknowledging the absurdity

of labelling her writing as a "dissent" when she agrees with the

result of this case: "Hence, although I write in dissent, I

dissent from the lead opinion; I agree with the functional

outcome of this case."18
17
See supra ¶42.
18
Justice Ziegler's "dissent," ¶47 n.14.

18
 No. 2011AP2680-CR.ssa & awb

¶135 The "functional outcome of this case" is that we

affirm the court of appeals. In fact, that is the outcome our

precedent requires when, as happened just two years ago in an

almost identical factual situation raising the same legal

issues, the court deadlocked: "the court of appeals decision

must be affirmed." See Johnson, 353 Wis. 2d 119, ¶1.

¶136 In Johnson, the court (sitting with just five members)

initially issued a per curiam opinion holding that, under

varying rationales, (1) a circuit court may not require a victim

to produce privately held, privileged mental health records for

in camera review; and (2) the victim may testify even if he or

she does not produce privately held, privileged mental health

records for in camera review. State v. Johnson, 2013 WI 59,

¶¶5-7, 348 Wis. 2d 450, 832 N.W.2d 609.

¶137 Subsequently, however, as we stated previously, the

court granted reconsideration and modified the prior per curiam,

asserting that "[v]ery simply stated, the court of appeals is

affirmed because no three justices[, a majority on a five member
court,] conclude either (1) that under Shiffra, the victim must

produce the records if she is to testify, or (2) that under

Green, the victim need not produce the records in order to

testify." Johnson, 353 Wis. 2d 119, ¶3 (on reconsideration).

"As a result, since a majority of the court has not reached

consensus under precedent so as to decide the issue presented

and the court is deadlocked, the decision of the court of

appeals must be affirmed." Johnson, 353 Wis. 2d 119, ¶13 (on
reconsideration).

19
 No. 2011AP2680-CR.ssa & awb

¶138 This case raises the same issues as Johnson, only this

time with a seven-member court. Following Johnson as precedent,

we should issue a per curiam opinion affirming the court of

appeals. Any justice could, if the justice wished, write

separately. The justices' separate writings would appear as

concurrences or dissents in order of seniority, as is our usual

practice.

¶139 But rather than hew to our precedent in Johnson, the

court sows the seeds of confusion and issues our opinions

seriatim with Justice Gableman's opinion (a dissenting opinion

issued without any label) being called the "lead opinion."

¶140 The proliferation of separate writings (as in this

case) and "lead opinions" is emblematic of the court's work this

"term" (September 2015 to June 2016).

¶141 Although we have not done a statistical analysis, our

perception is that few of the court's decisions this term have

been unanimous without any separate writings,19 and several,

including this case, have begun with "lead opinions." See,
e.g., Singh v. Kemper, 2016 WI 67, ___ Wis. 2d ___, ___

N.W.2d ___ (lead op. of Ann Walsh Bradley, J., joined by

Abrahamson, J.); Lands' End, Inc. v. City of Dodgeville, 2016 WI

64, ___ Wis. 2d ___, ____ N.W.2d ____ (lead op. of Abrahamson,

J., joined by Ann Walsh Bradley, J., and Gableman, J.); Coyne v.

Walker, 2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520 (lead op. of

19
See, e.g., State v. Tourville, 2016 WI 17, 367
Wis. 2d 285, 876 N.W.2d 735 (unanimously affirming the court of
appeals).

20
 No. 2011AP2680-CR.ssa & awb

Gableman, J. with Abrahamson, J., Ann Walsh Bradley, J., and

Prosser, J., each concurring separately); State v. Smith, 2016

WI 23, 367 Wis. 2d 483, 878 N.W.2d 135 (lead op. of Roggensack,

C.J., joined by Prosser, J., and Gableman, J.); United Food &

Comm. Workers Union, Local 1473 v. Hormel Foods Corp., 2016 WI

13, 367 Wis. 2d 131, 876 N.W.2d 99 (lead op. of Abrahamson, J.,

joined by Ann Walsh Bradley, J.); Hoffer Props., LLC v. DOT,

2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533 (lead op. of

Gableman, J., joined by Roggensack, C.J., and Ziegler, J.).

¶142 The phrase "lead opinion" is not, as far as we are

aware, defined in our Internal Operating Procedures or elsewhere

in the case law. Our Internal Operating Procedures (IOPs) refer

to "lead opinions," but only in stating that if, during the

process of circulating and revising opinions, "the opinion

originally circulated as the majority opinion does not garner

the vote of a majority of the court, it shall be referred to in

separate writings as the 'lead opinion.'" Wis. S. Ct. IOP

II.G.4.20
¶143 Prior to this case, we would have said that a lead

opinion is one that states (and agrees with) the mandate of a

majority of the justices, but represents the reasoning of less

than a majority of the participating justices. So, for example,

in a case with six justices participating, if three justices

join one opinion affirming the decision of the court of appeals,

two justices join a different opinion affirming the decision of

20
Our internal operating procedures are contained in volume
6 of the Wisconsin Statutes.

21
 No. 2011AP2680-CR.ssa & awb

the court of appeals, and one justice dissents, there is a

single mandate——the decision of the court of appeals is

affirmed——but no majority opinion. See Hoffer, 366 Wis. 2d 372.

Rather, one of the opinions affirming the decision of the court

of appeals will be the lead opinion.

¶144 This case, however, unnecessarily complicates our

understanding of what is a "lead opinion." Now, an opinion that

disagrees with the mandate and argues for an outcome with which

a majority of the court disagrees can be designated a "lead

opinion."

¶145 The absence of an agreed-upon definition for "lead

opinion" has the potential to cause confusion among the bench,

the bar, and the public. Also, the precedential effect (or lack

thereof) of a "lead opinion" is uncertain. Are lead opinions in

this court comparable to plurality opinions in the United States

Supreme Court?21 Apparently, the court of appeals considers a

plurality decision of this court persuasive but does not always

consider it binding. See, e.g., State v. King, 205 Wis. 2d 81,

21
See Marks v. United States, 430 U.S. 188, 193 (1977)
("When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, 'the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds . . . .'") (quoting Gregg v. Georgia, 428 U.S. 153, 169
n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

For discussions by this court of the precedential effect of
plurality opinions in the United States Supreme Court, see, for
example, State v. Griep, 2015 WI 40, ¶36, 361 Wis. 2d 657, 863
N.W.2d 567; State v. Deadwiller, 2013 WI 75, ¶30, 350
Wis. 2d 138, 834 N.W.2d 362.

22
 No. 2011AP2680-CR.ssa & awb

88-89, 555 N.W.2d 189 (Ct. App. 1996) (citing State v. Dowe, 120

Wis. 2d 192, 194, 352 N.W.2d 660 (1984)).

¶146 We would avoid the unnecessary confusion caused by

Justice Gableman's dissenting "lead" opinion, and issue a simple

per curiam opinion stating, as we did in Johnson, that "the

court of appeals decision must be affirmed."22 Each justice

could attach his or her separate writing to this per curiam

explaining how she or he would decide the case. This procedure

would avoid the confusion inherent in conferring, for some

unstated reason, "lead opinion" status on Justice Gableman's

dissenting opinion.

¶147 In closing, we note another way in which this case is

emblematic of the court's work during this term.

¶148 Despite one of the lightest (if not the lightest) case

loads ever in modern times and the adoption (by a divided court)

of a new procedure for circulating and mandating opinions on

September 25, 2014 (ostensibly designed to avoid the June

"crush"), around 40 percent of our decisions (including the case
before us) will be completed and released in June and July.23

This is true even though the court no longer discusses draft

22
Johnson, 353 Wis. 2d 119, ¶1.
23
All of the justices' work on opinions is completed on or
before June 30. Because the number of mandates is limited each
week, several opinions finished by June 30 are released in July.

23
 No. 2011AP2680-CR.ssa & awb

opinions in conference unless a majority of justices vote to do

so.24

¶149 In sum, failing to issue a per curiam opinion here

raises the potential for significant confusion over the outcome

of this case, the implication of our decision for future cases,

and the definition of "lead opinion," a term that has seen

increasing use of late. 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.

¶150 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.

¶151 For the reasons set forth, we concur in part, dissent

in part, and write separately to address institutional concerns.

24
The court's procedures for circulating and mandating
opinions have been written about before. See, e.g., State v.
Gonzalez, 2014 WI 124, ¶¶25-40, 359 Wis. 2d 1, 856 N.W.2d 580
(Abrahamson, C.J., concurring) (setting forth the procedure in
full). Others have noted the light case load this term. See
Alan Ball, Justice Abrahamson's Concerns Over the Docket – An
Update, SCOWstats (Mar. 20, 2016),
http://www.scowstats.com/2016/03/20/justice-abrahamsons-
concerns-over-the-docket-an-update/.

24
 No. 2011AP2680-CR.dtp

¶152 DAVID T. PROSSER, J. (dissenting). The principal

issue on review is whether the decisions in State v. Shiffra,

175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v.

Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298 (2002),

should be overruled. Although the lead opinion by Justice

Michael J. Gableman makes a number of compelling arguments about

the foundation and lineage of Shiffra and Green, as well as

their effect on Wisconsin law, I am ultimately persuaded that

the better course for this court is to address the concerns

arising from these opinions rather than to strike them down and

start over. In my view, overruling the opinions is more likely

to intensify controversy than to resolve it, as overruling would

seriously undermine a number of prior decisions and would invite

a host of new theories to protect criminal defendants at trial.

I

¶153 Because of divisions within the court, Justice

Gableman was assigned the responsibility of writing a lead
opinion. Two justices1 have joined him in the following

conclusions:

Shiffra/Green improperly relied on [Pennsylvania v.
Ritchie, 480 U.S. 39 (1987),] when it invented a right
to access privileged information (specifically 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.
1
Chief Justice Patience Drake Roggensack and Justice
Rebecca G. Bradley.

1
 No. 2011AP2680-CR.dtp

Lead op., ¶8. I dissent from these conclusions, which would

provide a basis for overruling Shiffra and Green and would

concomitantly reverse the decision of the court of appeals.2

¶154 I read Justice Gableman's opinion as making the

following observations about the Ritchie case:

(1) Defendant Ritchie sought materials from the

"investigative files" of Children and Youth Services

(CYS), "a protective service agency charged with

investigating cases of suspected mistreatment and

neglect." Ritchie, 480 U.S. at 43. The victim in

Ritchie was referred to CYS by police.

(2) The Pennsylvania statute pertaining to CYS provided

that "all reports and other information obtained in

the course of a CYS investigation" were "confidential,

subject to 11 specific exceptions." Id. One of these

exceptions was release "pursuant to a court order."

In other words, courts were specifically authorized by

2
Two other justices, Shirley S. Abrahamson and Ann Walsh
Bradley, would reverse the decision of the court of appeals in
part for a wholly different reason. Like Justice Annette
Kingsland Ziegler and the writer, Justices Abrahamson and Ann
Walsh Bradley would not overrule Shiffra and Green. Justices
Abrahamson and Ann Walsh Bradley's concurrence/dissent, ¶2.
They would, however, reverse the decision of the court of
appeals in part to permit a circuit court to compel release of
the records pursuant to Wis. Stat. § 146.82(2)(a)4. when a
complainant refuses to release records to the court for an in
camera review. Id., ¶¶42-43. I dissent from this specific
remedy proposed by the two justices. In essence, then, I vote
to affirm the decision of the court of appeals with the caveat
explained in ¶30 & n.6, infra, of this dissent.

2
 No. 2011AP2680-CR.dtp

statute to release confidential information in

appropriate circumstances.

(3) The Supreme Court relied exclusively on Brady v.

Maryland, 373 U.S. 83 (1963), the case that

articulated a prosecution disclosure obligation, and

cases that clarify Brady, to support its decision.

The first sentence of the Court's due process analysis

reads: "It is well settled that the government has the

obligation to turn over evidence in its possession

that is both favorable to the accused and material to

guilt or punishment." Ritchie, 480 U.S. at 57

(emphasis added).

(4) The CYS was a government agency, acting on the

Commonwealth's behalf, and its records were

constructively in the possession of the prosecutor.

¶155 The lead opinion contrasts these factors with the

facts in Shiffra:

(1) The defendant sought the complainant's psychiatric
records from private health care providers. The State

did not engage any of those providers for the

complainant.

(2) The prosecutor did not possess any private records and

was not required to provide them to the defendant

under Brady or Wis. Stat. § 971.23. In fact, the

Shiffra court did not cite Brady in its opinion.

(3) The complainant's refusal to release her records was
grounded on a privilege statute, Wis. Stat.

3
 No. 2011AP2680-CR.dtp

§ 905.04(2), which included no provision for a court

order.

¶156 The differences between the facts in Ritchie and the

facts in Shiffra are admittedly striking. The question is

whether they are constitutionally determinative. I do not

believe they are.

A

¶157 It is important to understand the dynamics in Ritchie.

The Supreme Court of Pennsylvania had relied on the Sixth

Amendment's Confrontation Clause for its decision to give the

defendant access to the entire CYS file related to the

complainant. The Supreme Court of Pennsylvania did not rely on

Brady at all.3 It said:

The purpose of [the Confrontation Clause] is to
provide an accused with an effective means of

3
A dissenting member of the court provided additional
factual insights about the case:

We do not deal with exculpatory material which
the defendant has requested and which is in the
possession of the Commonwealth. Although the Act
authorizes disclosure of child protective service
agency files to law enforcement officials
investigating cases of child abuse, 11 P.S. § 2215(9)
and (10), there is no indication that any law
enforcement officials ever had access to the CWS files
in question. Moreover, it is clear from the record
that the prosecution did not have any information from
the CWS records in its possession nor did the
Commonwealth use CWS records in any way to prosecute
appellee.

Commonwealth v. Ritchie, 502 A.2d 148, 157-58 (Pa. 1985)
(Larsen, J., dissenting), aff'd in part, rev'd in part, 480 U.S.
39 (1987).

4
 No. 2011AP2680-CR.dtp

challenging the evidence against him by testing the
recollection and probing the conscience of an adverse
witness. . . .

. . . .

. . . "The search for truth" and the quest for
"every man's evidence" so plainly the basis of the
Sixth Amendment . . . are as applicable to any
material as to prior statements. When materials
gathered become an arrow of inculpation, the person
inculpated has a fundamental constitutional right to
examine the provenance of the arrow and he who aims
it. Otherwise, the Sixth Amendment can be diluted to
mean that one may face his accusers or the substance
of the accusation, except when the accuser is shielded
by legislative enactment.
Commonwealth v. Ritchie, 502 A.2d 148, 152-53 (Pa. 1985), aff'd

in part, rev'd in part, 480 U.S. 39 (1987).

¶158 Four members of the Ritchie Court——Justice Powell

joined by Chief Justice Rehnquist, Justice White, and Justice

O'Connor——rejected reliance on the Confrontation Clause of the

Sixth Amendment. A majority of the Court instead recast the

facts and relied on Brady and a due process analysis. Justice

Blackmun, who was part of the majority, and Justices Brennan and

Marshall, in dissent, would have recognized a Sixth Amendment
Confrontation Clause right to the records sought. Justices

Stevens and Scalia dissented in Ritchie solely on the ground

that the Court lacked jurisdiction to hear the case. They did

not weigh in on the central dispute.

¶159 In sum, the Supreme Court majority in Ritchie

emphasized the "investigative" function of a government agency

to bring the case within Brady principles and avoid a much
broader holding by the Court. The Court did not absolutely slam

the door against a Compulsory Process Clause claim or even a due
5
 No. 2011AP2680-CR.dtp

process claim in a case with other facts. This puts the Ritchie

decision in a different light.

B

¶160 The lead opinion draws a sharp distinction between

privilege and confidentiality, emphasizing that Wis. Stat.

§ 905.04 is a privilege statute with no provisions authorizing a

court to order release of records, in contrast to the

Pennsylvania statute governing the CYS agency, which did.

¶161 There is no dispute that the Ritchie Court pointed to

the fact that 11 Pa. Stat. Ann. § 2215(a)(5) (Purdon Supp. 1986)

provided for release of confidential records pursuant to a court

order. 480 U.S. at 43-44. However, the Court also made

reference to privilege:

CYS refused to comply with the subpoena, claiming that
the records were privileged under Pennsylvania
law. . . .

. . . .

. . . The Commonwealth . . . argues that no
materiality inquiry is required, because a statute
renders the contents of the file privileged.
Requiring disclosure here, it is argued, would
override the Commonwealth's compelling interest in
confidentiality on the mere speculation that the file
"might" have been useful to the defense.

Although we recognize that the public interest in
protecting this type of sensitive information is
strong, we do not agree that this interest necessarily
prevents disclosure in all circumstances.
Id. at 43, 57 (emphasis added). The Court added a footnote: "We

express no opinion on whether the result in this case would have
been different if the statute had protected the CYS files from

6
 No. 2011AP2680-CR.dtp

disclosure to anyone, including law-enforcement and judicial

personnel." Id. at 57 n.14.

¶162 The Ritchie Court would have been in a tougher

situation if Ritchie had sought information from a sexual

assault counselor, see id. at 57 (characterizing 42 Pa. Cons.

Stat. § 5945.1(b) (1982) as an "unqualified statutory privilege

for communications between sexual assault counselors and

victims"), or from a licensed psychologist, see 42 Pa. Cons.

Stat. § 5944 (1982) ("No person who has been licensed . . . to

practice psychology shall be, without the written consent of his

client, examined in any civil or criminal matter as to any

information acquired in the course of his professional services

in behalf of such client."). I suspect the result would have

been the same.4

¶163 What is important to the present case is that Wis.

Stat. § 905.04——the "Physician-patient, registered nurse-

patient, chiropractor-patient, psychologist-patient, social

worker-patient, marriage and family therapist-patient,
podiatrist-patient and professional counselor-patient privilege"

statute——has 10 statutory exceptions, including the "Abused or

neglected child" exception, and that the statute must be read

and construed in pari materia with Wis. Stat. § 48.981 and Wis.

4
As Justice Powell explained in his opinion for the Court
in Schweiker v. McClure, 456 U.S. 188 (1982): "[D]ue Process is
flexible and calls for such procedural protections as the
particular situation demands." 456 U.S. at 200 (alteration in
original) (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)).

7
 No. 2011AP2680-CR.dtp

Stat. § 146.82(2) inasmuch as some fact situations will be

covered by more than one statute. Lynch already has some of the

Complainant's mental health records as a result of the State's

prosecution of the Complainant's father. Thus, the privilege at

issue in this case is not inviolate.

C

¶164 Implicit in the lead opinion's conclusion that we

should overrule Shiffra/Green is complete confidence in the

defendant's right to vigorously cross-examine a

victim/complainant at trial.

¶165 The Court in Ritchie was not impressed with this

remedy. As the Court explained, Ritchie's daughter was the main

witness against him at trial: "In an attempt to rebut her

testimony, defense counsel cross-examined the girl at length,

questioning her on all aspects of the alleged attacks and her

reasons for not reporting the incidents sooner. Except for

routine evidentiary rulings, the trial judge placed no

limitation on the scope of cross-examination." Ritchie, 480
U.S. at 44-45.

¶166 The fact that Ritchie was afforded ample opportunity

to cross-examine his daughter did not stop the Court from ruling

in Ritchie's favor. In fact, no Justice voted to block

Ritchie's access to his daughter's records.

¶167 In short, the lead opinion's comparison of Ritchie and

Shiffra does not persuade me that Shiffra was so off track that

it must be overruled. As Justice Shirley S. Abrahamson, Justice
Ann Walsh Bradley, and Justice Annette Kingsland Ziegler

8
 No. 2011AP2680-CR.dtp

persuasively point out in their separate writings, this court

has embraced Shiffra and Green, and courts in many other states

have extended Ritchie to cover records held by private health

care providers.

II

¶168 I also disagree with the lead opinion's conclusion

that "Shiffra/Green cannot be grounded in any other legal basis,

specifically any other constitutional provision." Lead op., ¶8.

If I didn't know better, I might think that the lead opinion was

tying to reverse the court's declining caseload with a single

provocative sentence.

¶169 There are additional bases to justify breaching a

privilege or other evidentiary limitation in exceptional cases.

Three examples immediately come to mind.

CONFIDENTIAL INFORMANT PRIVILEGE

¶170 In Roviaro v. United States, 353 U.S. 53 (1957), the

Supreme Court discussed the government's privilege to withhold

an informer's identity. The Court explained that the privilege
"recognizes the obligation of citizens to communicate their

knowledge of the commission of crimes to law enforcement

officials and, by preserving their anonymity, encourages them to

perform that obligation." Roviaro, 353 U.S. at 59. However, a

"limitation on the applicability of the privilege arises from

the fundamental requirements of fairness":

Where the disclosure of an informer's identity, or of
the contents of his communication, is relevant and
helpful to the defense of an accused, or is essential
to a fair determination of a cause, the privilege must
give way. In these situations the trial court may

9
 No. 2011AP2680-CR.dtp

require disclosure and, if the Government withholds
the information, dismiss the action.
Id. at 60-61 (footnote omitted).

¶171 In McCray v. Illinois, 386 U.S. 300 (1967), the Court

identified the basis for the Roviaro ruling: namely, "the

exercise of [the Court's] power to formulate evidentiary rules

for federal criminal cases." 386 U.S. at 312. As this court

explained in State v. Nellessen, 2014 WI 84, 360 Wis. 2d 493,

849 N.W.2d 654, Wis. Stat. § 905.10(1) "codified this privilege

for informers, which was first recognized in the seminal"

Roviaro decision. 360 Wis. 2d 493, ¶15. Wisconsin's

codification did not come until more than 15 years after the

Roviaro decision.

THE RAPE SHIELD LAW

¶172 Similar to other exceptions to various privileges, in

State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), this

court held the rape shield statute, Wis. Stat. § 972.11(2)

(1985-86),5 unconstitutional as applied, to the extent it

5
The statute provided as follows:

(2)(a) In this subsection, "sexual conduct" means
any conduct or behavior relating to sexual activities
of the complaining witness, including but not limited
to prior experience of sexual intercourse or sexual
contact, use of contraceptives, living arrangement and
life-style.

(b) If the defendant is accused of a crime under
s. 940.225, any evidence concerning the complaining
witness's prior sexual conduct or opinions of the
witness's prior sexual conduct and reputation as to
prior sexual conduct shall not be admitted into
evidence during the course of the hearing or trial,
nor shall any reference to such conduct be made in the
(continued)
10
 No. 2011AP2680-CR.dtp

infringed on a defendant's constitutional rights. The

defendant, Pulizzano, sought to present evidence that her

alleged victim "had been the victim of a prior sexual assault

which involved acts similar to those alleged[ly]" performed by

Pulizzano. Pulizzano, 155 Wis. 2d at 642-43. To assess

Pulizzano's claim, the court described a "constitutional right

to present evidence . . . grounded in the confrontation and

compulsory process clauses of Article I, Section 7 of the

Wisconsin Constitution and the Sixth Amendment of the United

States Constitution." Id. at 645 (first citing Washington v.

Texas, 388 U.S. 14, 17-19 (1967); then citing Pointer v. Texas,

380 U.S. 400, 403-06 (1965)).

¶173 Based on those constitutional protections, this court

concluded that under certain circumstances "evidence of a

complainant's prior sexual conduct may be so relevant and

probative that the defendant's right to present it is

presence of the jury, except the following, subject to
s. 971.31(11):

1. Evidence of the complaining witness's past
conduct with the defendant.

2. Evidence of specific instances of sexual
conduct showing the source or origin of semen,
pregnancy or disease, for use in determining the
degree of sexual assault or the extent of injury
suffered.

3. Evidence of prior untruthful allegations of
sexual assault made by the complaining witness.

Wis. Stat. § 972.11(2) (1985-86). The statute remains
substantially similar in the current codification.

11
 No. 2011AP2680-CR.dtp

constitutionally protected. Section 972.11, Stats., as applied,

may in a given case impermissibly infringe upon a defendant's

rights to confrontation and compulsory process." Id. at 647-48

(first citing Chambers v. Mississippi, 410 U.S. 284, 294-303

(1973); then citing Davis v. Alaska, 415 U.S. 308, 315-18

(1974)). If a defendant "establish[es] a constitutional right

to present otherwise excluded evidence," then "the circuit court

must then determine whether the State's interests in excluding

the evidence are so compelling that they nonetheless overcome

the defendant's right to present it." Id. at 656-57. During

the balancing, "the state's interests are to be closely examined

and weighed against the force of the defendant's right to

present the evidence." Id. at 657.

THERAPIST-PATIENT PRIVILEGE

¶174 In Johnson v. Rogers Memorial Hospital, Inc., 2005 WI

114, 283 Wis. 2d 384, 700 N.W.2d 27, the court established an

exception to the therapist-patient privilege in a third-party

negligence claim against a therapist whose treatment allegedly
resulted in implanting false memories of child abuse against a

woman's father. The court described the exception as "a public

policy exception" based on the premise that "no utility can be

derived from protecting careless or inappropriate therapists and

their practices." Johnson, 283 Wis. 2d 384, ¶¶63, 65.

¶175 A brief review of existing exceptions to the

confidential informant privilege, rape shield law, and

therapist-patient privilege demonstrates that the Shiffra/Green
framework is not the only context in which courts endeavor to

12
 No. 2011AP2680-CR.dtp

strike a balance between defendants' constitutional rights and

the policies underlying various evidentiary limitations.

Professor Edward J. Imwinkelried has explained in general terms

the nature of the balance that courts strike:

In criminal cases, the [Supreme] Court has
rendered exclusionary rules of evidence such as
privileges qualified or conditional by developing a
balancing test to determine whether the accused's
constitutional right to present evidence surmounts the
exclusionary rule. . . . [T]he factors in and the
nature of the balancing test employed in applying the
constitutional right are essentially the same as those
that a judge utilizes to determine whether a
litigant's need for privileged information overrides a
qualified privilege. The existence of this
constitutional right transforms even purportedly
absolute privileges into qualified or conditional
ones.
Edward J. Imwinkelried, The New Wigmore: A Treatise on Evidence

§ 11.3, at 1261 (2002). "[T]he vast majority of contemporary

lower courts assume that the accused's constitutional right

applies to evidentiary privileges and that if the excluded

evidence is reliable and material enough, the right can override

a privilege." Id. § 11.4.1, at 1295.

¶176 Overruling Shiffra and Green would needlessly cast
doubt on Pulizzano, Johnson, and other precedent in which

statutory schemes that reasonably promote privacy nevertheless

give way to weightier constitutional concerns. Furthermore, if

Shiffra and Green were overruled, creative counsel would soon

find other sources for the authority to order release of

privileged psychological and medical records, where necessary,

and these sources might well prove far more problematic than

13
 No. 2011AP2680-CR.dtp

Shiffra, which has provided a constructive approach to balancing

interests.

III

¶177 In my view, the lead opinion is being driven by

certain foundational concerns related to Shiffra/Green.

¶178 First, Shiffra/Green appears to open the door to

pretrial discovery beyond the sensible limitations in Wis. Stat.

§ 971.23.

¶179 Second, Shiffra/Green breaches an important statutory

privilege and other such breaches are likely to follow.

¶180 Third, Shiffra/Green embodies two extremes. The

complainant may prevent the State from prosecuting a criminal

case by insisting on withholding records that the court

concludes are necessary for the defendant's defense. However,

the complainant must surrender her privacy in confidential

communications if she releases her private psychological records

as a condition for prosecuting her assailant.

¶181 These are very legitimate concerns. However, rather
than overruling Shiffra and Green, the court would be better

served by focusing on and trying to address each of these

concerns by further refining and improving the existing

14
 No. 2011AP2680-CR.dtp

Shiffra/Green framework. This will necessarily include the

consideration of additional remedies.6

¶182 For the foregoing reasons, I respectfully dissent.

6
Already, the Shiffra/Green framework contemplates the
circuit court placing limitations on the release of privileged
mental health care records, as we indicated in Green when noting
that "[w]e have confidence in . . . circuit courts [conducting
an in camera review] to . . . make a proper determination as to
whether disclosure of the information is necessary based on the
competing interests involved in such cases." State v. Green,
2002 WI 68, ¶35, 253 Wis. 2d 356, 646 N.W.2d 298. Even "[w]hen
consent is given, the judge scrutinizes the records to determine
whether disclosure is warranted." 7 Daniel D. Blinka, Wisconsin
Practice Series § 511.2, at 389-90 (3d ed. 2008).

In my view, the court should explore reasonable remedies
between the extremes stated in ¶29, supra, so that barring
testimony by the nonconsenting witness is not the sole remedy in
all cases. See Blinka § 511.2, at 392. For example, Professor
Blinka has suggested that

[a]nother remedy may be to permit the witness to
testify but allow the defense to cross-examine about
his or her refusal to divulge records requested by the
court. The defense should also be permitted to argue
that the witness's nondisclosure creates a reasonable
doubt based on credibility concerns.

Id.

15
 No. 2011AP2680-CR.akz

¶183 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). This

case presents the court with a thorny issue: how must a circuit

court proceed when a criminal defendant contends there exists

exculpatory evidence in the hands of a private party, the

evidence consists of statutorily-privileged medical records, and

the alleged victim and subject of the medical records refuses to

waive her privilege as to the evidence at issue?

¶184 More concretely: defendant Patrick Lynch ("Lynch")

faces charges that he sexually assaulted the complainant in the

1990s. State v. Lynch, 2015 WI App 2, ¶2, 359 Wis. 2d 482, 859

N.W.2d 125. Lynch filed a motion requesting that the circuit

court1 review in camera the complainant's medical treatment

records dating back to the time of the alleged abuse. Id., ¶5.

According to the court of appeals below, he "submitted a

detailed offer of proof in support of his

motion . . . offer[ing] factual assertions and documents to

support his theory that [the complainant's] treatment records
contain probative, noncumulative evidence bearing on the

reliability of [the complainant's] allegations against Lynch."

Id., ¶11. Upon review, the circuit court concluded that there

was "a reasonable likelihood that [the complainant's] treatment

records contained probative, noncumulative evidence helpful to

Lynch's defense." Id., ¶5. Specifically, the court determined

1
The Honorable Andrew P. Bissonnette presided.

1
 No. 2011AP2680-CR.akz

that there was a reasonable likelihood that [the
complainant's] records contain information highly
damaging to [the complainant's] credibility because
there is a reasonable likelihood that the records
[would] reveal

(1) that [the complainant] exhibits
ongoing symptoms associated with [Post-
Traumatic Stress Disorder] that affect her
ability to recall and describe pertinent
events, and

(2) that [the complainant] failed to
report Lynch to treatment providers, at
least as a child.
Id., ¶13. The complainant refused, as was her statutory

prerogative, to provide the circuit court with access to her

privileged treatment records. Id., ¶6. At this point, it would

seem to an onlooker, the parties were at an impasse.

¶185 Such a state of affairs presents courts with the

complicated task of ensuring the administration of justice

considering all of the interests involved. Lynch, for example——

presumed innocent until proven guilty by the State, State v.

Johnson, 11 Wis. 2d 130, 144, 104 N.W.2d 379 (Dieterich, J.,

dissenting)——faces the possibility of being convicted as a sex

offender who may, among other things, serve decades in prison,

and he has a constitutional right to due process of law. See

U.S. Const. amend. XIV. Conversely, the State has, among other

things, an interest in pursuing its prosecution and protecting

the public from criminals, yet must comply with the statutory

and other rights and privileges established for the benefit of

victims of crime. The complainant, however, could have, among

other things, an interest in maintaining the privacy of sought-

2
 No. 2011AP2680-CR.akz

after medical records. How to manage the conflicting rights and

interests of all concerned?

¶186 Fortunately, this is not the first time the Wisconsin

judiciary has grappled with this problem. For over two decades,

its solution could be found in State v. Shiffra, 175

Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), modified, State v.

Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298. As will be

explained in detail below, Shiffra has set forth a framework

which considers the interests of all involved, carefully

balancing the various demands in an attempt to achieve

substantial justice in a manner that upholds both the federal

constitution and the laws of our state. Put differently, the

Shiffra solution "attempt[s] to strike a balance between the

witness's right to privacy, which is embodied in the health care

provider privileges, and the truth-seeking function of our

courts, which is rooted in the Due Process Clause of the

Fourteenth Amendment." State v. Behnke, 203 Wis. 2d 43, 56, 553

N.W.2d 265 (Ct. App. 1996) (citation omitted). Shiffra is
indeed longstanding precedent.

¶187 About ten years after Shiffra, in Green, we examined

and refined the Shiffra framework. In Green we described the

nature of the preliminary showing that a criminal defendant must

make in order to obtain in camera review of a privilege-holder's

privileged records:

[A] defendant [must] set forth, in good faith, a
specific factual basis demonstrating a reasonable
likelihood that the records contain relevant
information necessary to a determination of guilt or
innocence and . . . not merely cumulative to other

3
 No. 2011AP2680-CR.akz

evidence available to the defendant.
. . . [I]nformation will be "necessary to a
determination of guilt or innocence" if it "tends to
create a reasonable doubt that might not otherwise
exist."
Green, 253 Wis. 2d 356, ¶34 (citation omitted). To date,

Shiffra and Green remain the settled law in Wisconsin on the

approach taken by courts and litigants when criminal defendants

wish to obtain access to privately-held, privileged medical

records.

¶188 The circuit court below dutifully worked through the

Shiffra-Green framework and applied the traditional sanction

which included two results: (1) the court did not violate the

complainant's privilege by reviewing her privileged records; and

(2) the court issued an order excluding the complainant's

testimony at trial. Lynch, 359 Wis. 2d 482, ¶¶6, 45-46. The

court of appeals below confirmed that the circuit court had

correctly applied applicable precedent. See id., ¶1. The State

now appeals, directing the brunt of its arguments, not against

the reasoning of the circuit court or the court of appeals, but

against the soundness of Shiffra and Green.

¶189 Some background is appropriate. Over the years, the

State has made it clear that it disagrees with the Shiffra-Green

line of cases. Time after time, the State has attempted to

convince this court to overturn Shiffra; it has also voiced its

displeasure with that case in the court of appeals. See, e.g.,

State v. Speese, 199 Wis. 2d 597, 610 n.12, 545 N.W.2d 510

(1996) ("The State . . . urges the court to overturn Shiffra.");
Behnke, 203 Wis. 2d at 55 (discussing "the State's complaint in

4
 No. 2011AP2680-CR.akz

its brief that it does not like Shiffra."); Green, 253

Wis. 2d 356, ¶21 n.4 ("The State contends that the holding in

[Shiffra] was in error . . . ."); State v. Johnson, 2013 WI 59,

348 Wis. 2d 450, 832 N.W.2d 609 (per curiam), reconsideration

granted, 2014 WI 16, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam)

(examining, at State's request, whether Shiffra should be

overruled).

¶190 For its part, the court of appeals has attempted to

alleviate the State's concerns by explaining that the State

"misconstrues the reasoning of . . . Shiffra." Behnke, 203

Wis. 2d at 55. And for our part, we have expressly declined to

overturn Shiffra, noting that we have recognized its validity in

past cases. Green, 253 Wis. 2d 356, ¶21 n.4 (citing State v.

Solberg, 211 Wis. 2d 372, 386-87, 564 N.W.2d 775 (1997); State

v. Rizzo, 2002 WI 20, ¶53, 250 Wis. 2d 407, 640 N.W.2d 93)).

¶191 Johnson, decided a few years ago, represents the

State's most recent attempt in its campaign against Shiffra; the

State was again unsuccessful. See Johnson, 353 Wis. 2d 119, ¶3
(per curiam) ("[W]e do not herein overturn or modify any

precedent."). Unbowed and apparently embracing the legal maxim

fiat justitia ruat caelum,2 the State again argues that Shiffra

should be overruled. The State again fails to convince this

court to adopt its proposed course of action.

¶192 The Shiffra-Green line of cases, while not perfect,

has provided a reasoned and reasonable approach to these

2
"Let justice be done, though the heavens fall."

5
 No. 2011AP2680-CR.akz

difficult questions. Under principles of stare decisis, I would

not overthrow these well-established cases without "special

justification," Johnson Controls, Inc. v. Employers Ins. of

Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257

(citation omitted), and none has yet been provided.

Unfortunately, some of my colleagues do not agree; I therefore

write separately.

¶193 I conclude that this court should not abandon the

Shiffra-Green framework and would therefore affirm the decision

of the court of appeals.

I. THE SHIFFRA-GREEN FRAMEWORK

¶194 Under Wis. Stat. § 905.04(2), "A patient has a

privilege to refuse to disclose and to prevent any other person

from disclosing confidential communications made or information

obtained or disseminated for purposes of diagnosis or treatment

of the patient's physical, mental or emotional condition, among

the patient" and certain specified individuals, such as the

patient's physician or counselor. Wis. Stat. § 905.04(2).
¶195 When, as here, a defendant wishes to obtain access to

privileged, privately-held counseling records, the Shiffra-Green

framework requires that he "undertake a reasonable investigation

into the victim's background and counseling through other means

first before the records will be made available." Green, 253

Wis. 2d 356, ¶33. Thus "[a] motion for seeking discovery for

such privileged documents should be the last step in a

defendant's pretrial discovery." Id., ¶35. When requesting
access to privileged records, the defendant must make "a fact-

6
 No. 2011AP2680-CR.akz

specific evidentiary showing, describing as precisely as

possible the information sought from the records and how it is

relevant to and supports his or her particular defense." Id.,

¶33. More specifically, the defendant must "set forth, in good

faith, a specific factual basis demonstrating a reasonable

likelihood that the records contain relevant information

necessary to a determination of guilt or innocence and . . . not

merely cumulative to other evidence available to the defendant."

Id., ¶34. Evidence "necessary to a determination of guilt or

innocence" is evidence that "tends to create a reasonable doubt

that might not otherwise exist." Id. (citation omitted). This

is not by any means intended to be a trivial burden; "mere

speculation or conjecture" is insufficient. See id., ¶33.

Additionally, "[a] good faith request will often require support

through motion and affidavit from the defendant." Id., ¶35.

¶196 If the circuit court determines that the defendant has

met his burden, it reviews the records at issue in camera,

unless the privilege-holder——in cases such as this one, also the
alleged victim——refuses to authorize review. See Shiffra, 175

Wis. 2d at 612; Lynch, 359 Wis. 2d 482, ¶¶5-6. "If the victim

does not consent, there is no in camera review and the victim is

barred from testifying." Johnson v. Rogers Mem'l Hosp., Inc.,

2005 WI 114, ¶73, 283 Wis. 2d 384, 700 N.W.2d 27 (plurality

opinion) (citing Shiffra, 175 Wis. 2d at 612). If the alleged

victim does consent, however, the court reviews the records in

camera to ascertain whether they contain "any relevant
information that is 'material' to the defense of the accused."

7
 No. 2011AP2680-CR.akz

Solberg, 211 Wis. 2d at 386 (citation omitted). The standard

applied by the court during its in camera review is even more

demanding than the initial burden that must be met by the

defendant to obtain that review. See Green, 253 Wis. 2d 356,

¶31.

¶197 If the records at issue do not contain information

meeting the standard just described, no information is released

to the defendant. Solberg, 211 Wis. 2d at 387. If the records

do contain relevant information material to the defense of the

accused, the information is disclosed to the defendant, unless

the alleged victim refuses to authorize disclosure. Id. at 386-

87.3

¶198 The Shiffra-Green framework, which "giv[es] the

defendant an opportunity to have the circuit court conduct an

[in camera] review of the privileged records, while still

allowing the patient to preclude that review, addresses both the

interests of the defendant and the patient." Id. at 387

(citation omitted). "Under the due process clause, criminal
defendants must be given a meaningful opportunity to present a

complete defense." Shiffra, 175 Wis. 2d at 605 (citation

omitted). On the other hand, "[t]he public policy underpinning

3
Of course, if any information is released, the court still
retains "reasonable control over the mode and order of
interrogating witnesses and presenting evidence" at trial. Wis.
Stat. § 906.11. The court has the duty to exercise this control
in order to "[m]ake the interrogation and presentation effective
for the ascertainment of the truth[;] [a]void needless
consumption of time[; and] [p]rotect witnesses from harassment
or undue embarrassment." Id.

8
 No. 2011AP2680-CR.akz

the [Wis. Stat. § 905.04] privilege is to encourage patients to

freely and candidly discuss medical concerns with their

physicians by ensuring that those concerns will not

unnecessarily be disclosed to a third person." Solberg, 211

Wis. 2d at 387 (citation omitted). Thus, there is a quadruple-

layer of protection in place for privilege-holders: a privilege-

holder's consent to disclosure is required at two stages (prior

to in camera review and after in camera review), the defendant

must make the challenging Green showing before he is granted in

camera review of privileged records, and the circuit court

applies an even stricter standard to its in camera review of

those records before determining whether any evidence should be

disclosed to the defendant.

¶199 The existing procedure "strikes an appropriate balance

between the defendant's due process right to be given a

meaningful opportunity to present a complete defense and the

policy interests underlying the Wis. Stat. § [905.04(2)]

privilege." Id. First, fishing expeditions by the defense are
prohibited. Green, 253 Wis. 2d 356, ¶33. Second, if the

privilege holder does not wish to disclose the records, they

will not be disclosed. See Shiffra, 175 Wis. 2d at 612. Third,

should a circuit court conclude that a defendant makes a Green

preliminary showing for an in camera review, and should the

privilege-holder refuse to allow the court to conduct that

review, a defendant's right to a fair trial is safeguarded by

barring the privilege-holder's testimony at trial. Id. After
all, the defendant has by that time "demonstrat[ed] a reasonable

9
 No. 2011AP2680-CR.akz

likelihood that the [privilege-holder's] records contain

relevant information necessary to a determination of guilt or

innocence and . . . not merely cumulative to other evidence

available to the defendant." Green, 253 Wis. 2d 356, ¶34

(emphases added). "Under the circumstances," preclusion of the

privilege-holder's testimony is warranted as "the only method of

protecting [the defendant's] right to a fair trial." Shiffra,

175 Wis. 2d at 612.

¶200 Regrettably, there are occasions when defendants are

wrongfully accused of committing a sexual assault. In those

instances, the alleged victim would be the most likely to refuse

access to those records, particularly if exculpatory information

exists within those records. Unfortunately, the lead opinion

falls short of contemplating this scenario when it bars access

to an alleged victim's privileged, privately-held records no

matter the circumstances. Simply stated, the procedure outlined

by the lead opinion forecloses any opportunity to rebut the

allegations through the use of an alleged victim's records, even
when the defendant meets the high standard required by Green.4

4
In cases such as this one where the defendant has met the
significant hurdles established in the Green standard and the
privilege-holder refuses to consent to in camera review, the
lead opinion has nonetheless concluded that otherwise
accessible, potentially exculpatory evidence has
constitutionally been placed outside of the reach of the
defendant. The lead opinion dismisses our concern over the
potential violation of the defendant's constitutional rights,
tacitly characterizing it as an emotional appeal. If the
constitutional right to present a defense has emotional appeal,
it is because I feel strongly that our constitutional rights
ought to be protected. The lead opinion's assurances that
somehow the criminal justice system otherwise prevents wrongful
(continued)
10
 No. 2011AP2680-CR.akz

convictions, in the absence of the Shiffra-Green framework, ring
hollow.

The lead opinion concludes that meaningful constitutional
protections are afforded to a defendant, because a defendant has
certain general safeguards, such as a presumption of innocence
and the right to an adversarial process. The lead opinion
concludes that these protections alone avert erroneous
convictions, but these protections alone do not directly address
the need for a defendant to access privileged, privately-held
records in order, for example, to present a meaningful defense
or adequately cross-examine——fundamental to the adversarial
process. True, the presumption of innocence is a safeguard, in
the same way that providing defendants with a trial in the first
place is a safeguard: necessary, important, but ultimately not
germane to the specific concern in these types of cases: a
privilege-holder's refusal to consent to in camera review of
privileged, privately-held records reasonably likely to contain
relevant information necessary to a determination of the
defendant's guilt or innocence and not merely cumulative to
other evidence available to the defendant. State v. Green, 2002
WI 68, ¶19, 253 Wis. 2d 356, 646 N.W.2d 298

The lead opinion urges trust in our adversary legal system,
but our "adversary legal system . . . depends upon the
availability of relevant evidence," Nixon v. Administrator of
General Services, 433 U.S. 425, 477 (1977), to say nothing of
the availability of "information necessary to a determination of
guilt or innocence and . . . not merely cumulative to other
evidence available to the defendant." Green, 253 Wis. 2d 356,
¶34. I acknowledge the grave importance of ensuring the privacy
of the records at issue in this case. At the same time, when
evidence potentially so relevant to the question of a
defendant's guilt is placed out of the defendant's reach, there
is legitimate cause for concern. We do expect juries to reach
valid results, but they are unable to do so when they are only
presented with the evidence favorable to one side of a
prosecution. This is what causes individuals to lose, not gain,
faith in the criminal justice system.

Additionally, the lead opinion explains that because in
cases such as the current one the prosecution does not have
access to a complainant's privileged mental health care records
either, defendants are not placed in a disadvantageous position
vis-à-vis the State. But Wisconsin case law has already
addressed this argument:

(continued)
11
 No. 2011AP2680-CR.akz

Is it so clear that this procedure is preferable to the one that

has been in place for over two decades? I think not.

¶201 The Shiffra-Green framework provides a workable

solution to a difficult problem. Perhaps suggesting its

intrinsic equity, the framework forces every party involved——the

defendant, the privilege-holder, the State——to shoulder a burden

of some kind. The defendant must meet the required evidentiary

In those situations when the State does not have
access to the records because the witness has asserted
a health care provider privilege, . . . the State
believes that the requirement for an in camera review
set out in Ritchie should not apply. . . . [The
State] sees no potential unfairness in such situations
because neither the State nor the defendant can use
the records. The playing field is kept completely
level.

The State, however, misconstrues the reasoning of
Ritchie and Shiffra. These decisions are not about
keeping a level playing field between the State and
the defendant. Rather, these decisions attempt to
strike a balance between the witness's right to
privacy, which is embodied in the health care provider
privileges, and the truth-seeking function of our
courts, which is rooted in the Due Process Clause of
the Fourteenth Amendment.

State v. Behnke, 203 Wis. 2d 43, 55-56, 553 N.W.2d 265 (Ct. App.
1996) (citation omitted).

Finally, the lead opinion refers to the State's obligation
under Brady v. Maryland, 373 U.S. 83 (1963), and to the
possibility that future legislative or judicial developments
will provide a new justification for use of the Shiffra-Green
framework. Again, these considerations do not address the
pressing concern in this case: a privilege-holder's refusal to
consent to in camera review of currently-privileged, privately-
held records reasonably likely to contain relevant information
necessary to a determination of the defendant's guilt or
innocence and not merely cumulative to other evidence available
to the defendant. Green, 253 Wis. 2d 356, ¶19.

12
 No. 2011AP2680-CR.akz

showings, is never allowed his own review of the records at

issue prior to final disclosure, and may nevertheless lose

access to the records if the privilege-holder does not consent

to disclosure. The privilege-holder must choose between limited

disclosure of privileged evidence which is reasonably likely to

contain relevant, non-cumulative information necessary to a

determination of the defendant's guilt or innocence and

preclusion of her testimony at trial. Finally, the State faces

the possibility that its prosecution will be "hampered by a

witness who strives to maintain privacy." Behnke, 203 Wis. 2d

at 55.

¶202 The State has lodged understandable complaints against

the effect the Shiffra-Green framework has on the prosecution of

its cases.

We . . . acknowledge that the "costs" of the
health care provider privileges are principally
shifted to the State. In a few circumstances, the
State may have to completely forgo a case when one of
its witnesses refuses to turn over the information.
Nonetheless, the Due Process Clause guarantees the
defendant a right to a trial based on truth seeking
which can only be accomplished by allowing him or her
to present a complete defense. The Due Process Clause
thus prevents the State from shifting the costs
associated with the health care provider privileges to
criminal defendants. . . .

The State also complains about the practical
effects of the Shiffra decision on its ability to
prosecute a case. It believes that forcing the State
to pressure its witness into releasing the information
or forgoing this witness's testimony is not fair. The
State asserts that it should not be forced to make its
witness reveal private information. And a witness,
most likely the accuser, should not be forced to
disclose private and personal information to have the
defendant brought to justice.
13
 No. 2011AP2680-CR.akz

These complaints, however, were addressed in
Shiffra, and the remedy set out in that case is still
valid. Before the defendant is allowed access to
these records and the witness's privacy is sacrificed,
and before the State is faced with the decision of
whether it can forgo the witness and still make its
case, the records must pass through a private and
confidential review in the trial court's chambers. We
have complete confidence in this state's trial judges
to accurately and fairly balance the witness's right
to privacy and the defendant's right to a trial where
every piece of evidence material to determining the
truth will be considered. The State overestimates the
burden that Shiffra places on it and its witnesses.
Behnke, 203 Wis. 2d at 56-57 (citations omitted).
¶203 The Behnke court's discussion provides a window into

the State's view of the matter. The State again asks this court

to abandon the Shiffra-Green framework by overturning Shiffra or

by modifying Shiffra's holding to allow for remedies other than

preclusion of the privilege-holder's testimony. Certain of my

colleagues would grant the State's request. I would not and

will now discuss why the court should not now abandon the

Shiffra-Green framework.

II. THIS COURT SHOULD NOT ABANDON THE SHIFFRA-GREEN FRAMEWORK.

A. This Court Should Not Overrule Shiffra.
¶204 The State and the lead opinion would upend over two

decades of precedent by overruling Shiffra, despite the fact

that this court has already explicitly refused to do so. Green,

253 Wis. 2d 356, ¶21 n.4.5 What has changed since Green?:

5
To put the time period during which Wisconsin courts have
relied on Shiffra in perspective, I note that Shiffra was
decided the same year as Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).

14
 No. 2011AP2680-CR.akz

Nothing that has any bearing on the legal questions in this

case. What should now cause us to uproot decades of precedent?

Such unpredictability on the part of this court is inimical to

the rule of law. Johnson Controls, 264 Wis. 2d 60, ¶94

("[R]espect for prior decisions is fundamental to the rule of

law."). When our law "is open to revision in every case,

'deciding cases becomes a mere exercise of judicial will, with

arbitrary and unpredictable results.'" Id. (citation omitted).

Although often repeated, it is appropriate to again set out the

important rationales for stare decisis:

[1] the desirability that the law furnish a clear
guide for conduct of individuals, to enable them to
plan their affairs with assurance against untoward
surprise; [2] the importance of furthering fair and
expeditious adjudication by eliminating the need to
relitigate every relevant proposition in every case;
and [3] the necessity of maintaining public faith in
the judiciary as a source of impersonal and reasoned
judgments.
Id., ¶95 (citation omitted). Stare decisis "promotes

evenhanded, predictable, and consistent development of legal

principles . . . and contributes to the actual and perceived

integrity of the judicial process." Id. (citation omitted).

Twice now in the past few years this court has wrestled with the

problem at issue in this case and created confusion in the lower

courts. Johnson, 348 Wis. 2d 450 (per curiam), reconsideration

granted, 353 Wis. 2d 119 (per curiam). All the more reason to

follow precedent today.

¶205 "[S]pecial justification is required to overturn prior
decisions," and "[t]he reasons for rejecting any established

rule of law must always be weighed against" the rationales
15
 No. 2011AP2680-CR.akz

underlying stare decisis. Johnson Controls, 264 Wis. 2d 60,

¶¶95-96. When considering overturning prior case law, this

court may examine a series of concerns: (1) whether there have

been "changes or developments in the law [which] have undermined

the rationale behind a decision"; (2) whether there is "a need

to make a decision correspond to newly ascertained facts"; (3)

whether there has been "a showing that the precedent has become

detrimental to coherence and consistency in the law"; (4)

"whether the prior decision is unsound in principle"; (5)

"whether [the prior decision] is unworkable in practice"; (6)

"whether reliance interests are implicated"; (7) "whether the

prior case was correctly decided"; and (8) "whether it has

produced a settled body of law." Id., ¶¶98-99 (citations

omitted).

¶206 Most, if not all, of these considerations counsel

against overturning Shiffra and Green. But the State and the

lead opinion share the same fundamental complaint with regard to

the Shiffra-Green framework: they believe that Shiffra
improperly interpreted and applied the case upon which it

principally relied, Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

Shiffra, 175 Wis. 2d at 603. In Ritchie the Supreme Court

relied on the Due Process Clause of the Fourteenth Amendment,

Brady v. Maryland, 373 U.S. 83 (1963), and other case law for

its conclusion that the trial court in that case was required to

review in camera confidential records in the hands of a state

protective service agency in order to determine whether the
records contained information that "probably would have changed

16
 No. 2011AP2680-CR.akz

the outcome" of a criminal defendant's trial. Ritchie, 480 U.S.

at 43, 57-58.

¶207 Specifically, the lead opinion argues that Shiffra

represents an unwarranted application of Ritchie, because: (1)

Shiffra involved privileged records, whereas Ritchie involved

confidential records; (2) Wis. Stat. § 905.04(2) contains no

exception allowing for release by court order, whereas the

statute at issue in Ritchie did contain such an exception; and

(3) the records in Shiffra were held by a private entity,

whereas the records in Ritchie were held by a state protective

service agency "charged with investigating cases of suspected

mistreatment and neglect." Ritchie, 480 U.S. at 43. This last

distinction is essentially echoed by the State.

¶208 Before turning to these objections, let us assume for

a moment that the State and the lead opinion are correct that

Shiffra was wrong to premise its holding on Ritchie.

Respecting stare decisis means sticking to some
wrong decisions. The doctrine rests on the idea, as
Justice Brandeis famously wrote, that it is usually
"more important that the applicable rule of law be
settled than that it be settled right." Indeed, stare
decisis has consequence only to the extent it sustains
incorrect decisions; correct judgments have no need
for that principle to prop them up. Accordingly, an
argument that we got something wrong——even a good
argument to that effect——cannot by itself justify
scrapping settled precedent. Or otherwise said, it is
not alone sufficient that we would decide a case
differently now than we did then. To reverse course,
we require as well what we have termed a "special
justification"——over and above the belief "that the
precedent was wrongly decided."

17
 No. 2011AP2680-CR.akz

Kimble v. Marvel Entm't, LLC, 576 U.S. ___, 135 S. Ct. 2401,

2409 (2015) (emphasis added) (citations omitted).6 In 2002 the

6
The lead opinion's suggestion that this statement of law
is inapplicable in a constitutional case is not correct. In the
section of Kimble v. Marvel Entertainment, LLC, 576 U.S. ___,
135 S. Ct. 2401 (2015), cited above, the Supreme Court discussed
stare decisis in general terms and in fact cited Payne v.
Tennessee, 501 U.S. 808, 827-28 (1991), a constitutional case,
in the first paragraph of that section. Kimble, 135 S. Ct. at
2409 (citation omitted). The Court also discussed stare decisis
in the context of decisions interpreting statutes. This latter
discussion is the one quoted by the lead opinion. See id.

For example, in Dickerson v. United States, the Supreme
Court considered legislation bearing on Miranda v. Arizona, 384
U.S. 436 (1966), and considered whether it should overrule that
case. Dickerson, 530 U.S. 428, 431-32 (2000). The Court
concluded: "We hold that Miranda, being a constitutional
decision of this Court, may not be in effect overruled by an Act
of Congress, and we decline to overrule Miranda ourselves." Id.
at 432. A portion of the Dickerson Court's discussion of stare
decisis is informative for purposes of this case:

Whether or not we would agree with Miranda's
reasoning and its resulting rule, were we addressing
the issue in the first instance, the principles of
stare decisis weigh heavily against overruling it now.
See, e.g., Rhode Island v. Innis, 446 U.S. 291, 304,
100 S. Ct. 1682, 64 L.Ed.2d 297 (1980) (Burger, C.J.,
concurring in judgment) ("The meaning of Miranda has
become reasonably clear and law enforcement practices
have adjusted to its strictures; I would neither
overrule Miranda, disparage it, nor extend it at this
late date."). While "'stare decisis is not an
inexorable command,'" particularly when we are
interpreting the Constitution, "even in constitutional
cases, the doctrine carries such persuasive force that
we have always required a departure from precedent to
be supported by some 'special justification.'"

We do not think there is such justification for
overruling Miranda.

Id. at 443 (some citations omitted) (emphasis added).

(continued)
18
 No. 2011AP2680-CR.akz

Green court understood that fact. Green, 253 Wis. 2d 356, ¶21

n.4 ("[T]his court [has] recognized the validity of Shiffra in

State v. Solberg, 211 Wis. 2d 372, 386-87, 564 N.W.2d 775

(1997), and in State v. Rizzo, 2002 WI 20, ¶53, 250 Wis. 2d 407,

640 N.W.2d 93. We will not depart from this precedent.").

¶209 Thus, although the State and the lead opinion have

undeniably identified distinctions between Shiffra and Ritchie,

the relevant question is whether these distinctions warrant

upheaval of a "settled body of law."7 Johnson Controls, 264

Wis. 2d 60, ¶99; see Daniel D. Blinka, The Shiffra Procedures:

Production of a Witness's Privileged Health Care Records, 7 Wis.

Prac., Wis. Evidence § 511.2 (discussing "the Shiffra

doctrine"); see also Wisconsin District Attorneys Association,

Wisconsin Prosecutor's Domestic Abuse Reference Book, ch. 13 (2d

ed. 2012) ("Discovery of Medical Records of Victims and

Witnesses: Shiffra-Green and Related Cases").

¶210 Turning to the merits of the objections raised: Was

Shiffra "unsound in principle"? Johnson Controls, 264
Wis. 2d 60, ¶99. That is, was it wrong to extend the reasoning

Shiffra-Green has striking similarities to the development
of Miranda. Both developed out of underlying constitutional
principles rather than the words of the constitution itself.
Given the above precedent, consider the words "Shiffra-Green" in
place of "Miranda" in the above quotation to analyze whether
stare decisis applies in the case at issue.
7
For instance, the Shiffra court itself recognized that it
was using Ritchie's postconviction analysis in a pretrial
context, and thus already was not simply engaged in a
straightforward application of that case. See State v. Shiffra,
175 Wis. 2d 600, 606-09, 499 N.W.2d 719 (Ct. App. 1993).

19
 No. 2011AP2680-CR.akz

in Ritchie to privately-held records? Nationwide, the jury is

still out on that question:

Since the due process obligation of the
prosecution under Brady extends only to evidence
within its control, an issue left open in Ritchie is
whether a subpoena . . . directed to a private party
or an unrelated governmental agency carries similar
constitutional protection. Many lower courts, in
dealing with records similar to those involved in
Ritchie, have ordered the same type of in camera
review as required there without regard to whether the
records were sought from a related state agency or a
private hospital.
Wayne R. LaFave et al., 6 Criminal Procedure § 24.3(f) & n.207

(4th ed. 2015) (collecting cases); Burns v. State, 968 A.2d

1012, 1024–25 & n.41 (Del. 2009) (same). Additionally, at least

one state court has allowed access to the type of information at

issue on constitutional grounds unrelated to the Due Process

Clause, which is why the lead opinion undertakes the Herculean

task of negating any other constitutional basis for Shiffra in

order to demonstrate that Shiffra is indeed "unsound in

principle." See Commonwealth v. Barroso, 122 S.W.3d 554, 561

(Ky. 2003) ("[W]e conclude that the Compulsory Process Clause

affords a criminal defendant the right to obtain and present

exculpatory evidence, including impeachment evidence, in the

possession of a third party that would otherwise be subject to

the psychotherapist-patient privilege."). One might think that

the unsettled nature of the question across the country would

counsel restraint when considering upsetting the settled case

law on the question in Wisconsin, pending further guidance from
the Supreme Court on the issue. But the State and the lead

20
 No. 2011AP2680-CR.akz

opinion are confident that the Shiffra and Green courts got it

so wrong that drastic action is needed.

¶211 The lead opinion's distinctions between Ritchie and

Shiffra do not inescapably lead to the conclusion that Shiffra

must be overruled. For example, the lead opinion makes much of

the fact that the statute at issue in Ritchie contained an

exception allowing an agency to disclose records at issue to a

"court of competent jurisdiction pursuant to a court order."

Ritchie, 480 U.S. at 44. It is true that Wis. Stat. § 905.04

does not contain such an exception. But neither is the statute

one that grants a private party "the absolute authority to

shield its files from all eyes." Ritchie, 480 U.S. at 57. In

fact, Wis. Stat. § 905.04 currently contains about 11

exceptions. Wis. Stat. § 905.04(4) ("Exceptions").8 The state

statute which the Ritchie court cited as an example of an

"unqualified statutory privilege" contained no exceptions.

Ritchie, 480 U.S. at 57 (citing 42 Pa. Cons. Stat. § 5945.1(b)).

¶212 In a footnote, the Ritchie court "express[ed] no
opinion on whether the result in this case would have been

different if the statute had protected the [protective service

agency's] files from disclosure to anyone, including law-

enforcement and judicial personnel." Ritchie, 480 U.S. at 57

n.14. Wisconsin Stat. § 905.04 allows disclosure to both law-

enforcement and judicial personnel. See, e.g. Wis. Stat.

8
Coincidentally, the statute at issue in Ritchie also
contained 11 exceptions. Pennsylvania v. Ritchie, 480 U.S. 39,
43 (1987).

21
 No. 2011AP2680-CR.akz

§ 905.04(4)(d) ("There is no privilege in trials for homicide

when the disclosure relates directly to the facts or immediate

circumstances of the homicide."); Wis. Stat. § 905.04(4)(e)2m.

("There is no privilege for information contained in a report of

child abuse or neglect that is provided under s. 48.981(3).").

And even if the statute did not allow such disclosure, the

Ritchie court "express[ed] no opinion" on the potential

distinction. Ritchie, 480 U.S. at 57 n.14. This hardly

supports a conclusion that Shiffra was "unsound in principle" in

extending Ritchie's principles to the facts at issue in that

case.9

¶213 Second, the lead opinion's confidentiality-vs.-

privilege distinction is not one that was emphasized by the

Ritchie court. And it is far from clear that the Ritchie

court's analysis would have been any different had the statute

at issue been a privilege statute. See, e.g., Ritchie, 480 U.S.

at 43 ("[The protective service agency] refused to comply with

the subpoena, claiming that the records were privileged under
Pennsylvania law."); id. at 52 (plurality opinion) (stating that

a statute in a prior case rendered information presumptively

confidential, then referring to that statute as creating a

9
It bears repeating here that Shiffra and Green do not
create a statutory exception to a privilege where one does not
exist. The cases do not create blanket authorization for in
camera review of privileged materials. Instead, should the
proper showing be made, and should a privilege-holder refuse to
consent to in camera review, the privilege-holder is barred from
testimony at trial and her privilege remains intact. See
Shiffra, 175 Wis. 2d at 612.

22
 No. 2011AP2680-CR.akz

statutory privilege); id. at 57 ("The Commonwealth, however,

argues that no materiality inquiry is required, because a

statute renders the contents of the file privileged."). And

indeed, we are not the only jurisdiction that has failed to give

the distinction dispositive weight. Burns, 968 A.2d at 1024.

The lead opinion's purported distinction does not rise to the

level of a "special justification" warranting the elimination of

20 years of Wisconsin case law.

¶214 Finally, reading the lead opinion, one almost comes

away with the conclusion that Shiffra relied directly on Brady

rather than on Ritchie.10 Nowhere does the Ritchie court state,

as the lead opinion hesitantly admits, that the fact that the

protective service agency in that case was tasked with

investigating "cases of suspected [child] mistreatment and

neglect" thereby made it an arm of the prosecution. Indeed, the

Supreme Court cases cited by the lead opinion for its reasoning

on this point were not published until years after Ritchie, and

thus were not in the contemplation of the Ritchie court. The
lead opinion's interpretation of Ritchie may "make[] sense" in

retrospect, but it does not banish all doubt that the Ritchie

court might have had broader principles in mind at the time it

decided its opinion.

10
In fact, during the Ritchie court's discussion of whether
the criminal defendant in that case was "entitled to have the
[protective service agency] file reviewed by the trial court to
determine whether it contains information that probably would
have changed the outcome of his trial," the court cited Brady
exactly one time. Ritchie, 480 U.S. at 57.

23
 No. 2011AP2680-CR.akz

¶215 To be sure, Ritchie relied on principles taken from

Brady. Ritchie, 480 U.S. at 57; see District Attorney's Office

for Third Judicial Dist. v. Osborne, 557 U.S. 52, 61 (2009)

("The Court of Appeals affirmed, relying on the prosecutorial

duty to disclose exculpatory evidence recognized in Pennsylvania

v. Ritchie, 480 U.S. 39 (1987), and Brady v. Maryland, 373 U.S.

83 (1963)."). But it is not evident that that necessarily

forecloses application of Ritchie to a broader set of

circumstances. See, e.g., Burns, 968 A.2d at 1024-25 ("Although

Ritchie involved the disclosure of records in the possession of

the State, nothing in the Ritchie Court's holding or analysis

limits its application to records held by the State. . . . From

the standpoint of the privilege holder it is immaterial whether

the holder's therapy records are in the possession of a private

party or the State. In either circumstance, the privilege

holder has the identical interest in non-disclosure."); cf.

State v. Cressey, 628 A.2d 696, 703 (N.H. 1993) (citing State v.

Gagne, 612 A.2d 899 (N.H. 1992)) ("Gagne did not distinguish
between the privileged records of a State agency and the

privileged records of a private organization. The rationale in

Gagne, balancing the rights of a criminal defendant against the

interests and benefits of confidentiality, applies equally in

both cases. A record is no less privileged simply because it

belongs to a State agency. Likewise, a defendant's rights are

no less worthy of protection simply because he seeks information

maintained by a non-public entity.").

24
 No. 2011AP2680-CR.akz

¶216 Our court of appeals——in one of the numerous cases the

lead opinion would abrogate today——has rejected the notion that

Ritchie and Shiffra are about "keeping a level playing field

between the State and the defendant." Behnke, 203 Wis. 2d at

55-56. Instead, "these decisions attempt to strike a balance

between the witness's right to privacy, which is embodied in the

health care provider privileges, and the truth-seeking function

of our courts, which is rooted in the Due Process Clause of the

Fourteenth Amendment." Id. Although the lead opinion reads

Ritchie as a more-or-less clear-cut application of Brady, I am

not convinced that this is the only reasonable reading of the

Ritchie court's brief and enigmatic analysis, such that Shiffra

must be overruled. See Ritchie, 480 U.S. at 57-58.11 The

question is less about which position is correct, and more about

whether the mere possibility of error justifies such a

monumental shift in Wisconsin law. See Johnson Controls, 264

Wis. 2d 60, ¶¶94-96.

11
Other jurisdictions appear to be in accord with
Wisconsin's current approach. See Clifford F. Fishman, Defense
Access to a Prosecution Witness's Psychotherapy or Counseling
Records, 86 Or. L. Rev. 1, 18 (2007) ("Where a defendant has
established a constitutional right to the disclosure of
privileged information, but the statutory privilege is absolute
on its face, some courts have held that the witness retains the
privilege: a court cannot disclose unless the witness waives the
privilege. Absent such a waiver, if the defendant adequately
demonstrates the need for an in camera review or disclosure of
the records, the witness is precluded from testifying. If he or
she has already testified, his or her testimony is stricken from
the record. States following this approach include Connecticut,
Michigan, Nebraska, New Mexico, Wisconsin, and South Dakota"
(footnotes omitted) (citations omitted).).

25
 No. 2011AP2680-CR.akz

B. This Court Should Not Modify Shiffra.

¶217 If Shiffra is not overturned, the State asks this

court to modify Shiffra to allow for alternative remedies when a

defendant makes the showing required by Green and the privilege-

holder refuses to allow the circuit court to conduct an in

camera review of the privilege-holder's records. Certain of the

justices on this court agree with the State's suggestion. I am

not yet convinced that we should modify Shiffra.

¶218 To be clear, when the Shiffra court stated that

"[u]nder the circumstances, the only method of protecting

Shiffra's right to a fair trial was to suppress [the privilege-

holder's] testimony if she refused to disclose her records," it

meant that no other method is available in these types of

cases——"[i]n this situation, no other sanction would be

appropriate." Shiffra, 175 Wis. 2d at 612.12 As a preliminary

12
The court of appeals below correctly explained:

[W]e agree with the circuit court that we are bound by
plain language in Shiffra that forecloses alternative
remedies.

. . .

Shiffra's use of "In this situation" and "Under the
circumstances," read in context, is plainly a
reference to the "situation" or "circumstance" in
which a defendant makes the required showing and the
victim refuses to authorize release of the records for
an in camera review. There is nothing in Shiffra
suggesting that the use of this language was meant to
restrict the holding to some unspecified subset of
situations or circumstances in which a defendant makes
the required showing and the victim refuses to release
records.

(continued)
26
 No. 2011AP2680-CR.akz

matter, the discussion in Shiffra thus essentially disposes of

the State's arguments that there are other remedies available,

namely: (1) use of an exception in a statute not at issue, Wis.

Stat. § 146.82(2)(a)4., to compel production of privileged

records; and (2) use of a case-by-case balancing test to

determine whether a privilege-holder should be allowed to

testify even after refusing to disclose privileged records.

¶219 More specifically, the State's first proposed solution

is plainly nothing more than wishful thinking. The State would

bypass the privilege-holder's refusal to allow in camera

review——as is the privilege-holder's right under Wis. Stat.

§ 905.04(2)——by using an exception to Wis. Stat. § 146.82,

"Confidentiality of patient health care records." Section

146.82(2)(a)4. allows access to patient healthcare records

rendered confidential by that statute "without informed consent"

State v. Lynch, 2015 WI App 2, ¶¶42-43, 359 Wis. 2d 482, 859
N.W.2d 125.

I recognize that Shiffra's author has voiced, in an
unpublished dissent, his disagreement with this interpretation
of Shiffra. State v. Johnson, No. 2011AP2864-CRAC, unpublished
slip op., ¶24 (Wis. Ct. App. Apr. 18, 2012), aff'g as modified
by 2013 WI 59, 348 Wis. 2d 450, 832 N.W.2d 609. Ignoring other
problems with reliance on this type of post-decision "judicial
history," I note that two other judges joined the Shiffra
opinion and may have had a different view of the case. I also
note that both the majority in the unpublished Johnson case and
the court of appeals below disagree with the Johnson dissent's
reading of Shiffra. See Johnson, unpublished slip op., ¶¶16-18;
Lynch, 359 Wis. 2d 482, ¶¶42-43. I agree with these five judges
that Shiffra's language does not admit of any alternative
remedies.

27
 No. 2011AP2680-CR.akz

pursuant to "a lawful order of a court of record."

§ 146.82(2)(a)4.

¶220 It would seem to go without saying that an exception

in one statute ordinarily does not operate as an exception in

another statute. Wisconsin Stat. § 146.82 currently contains

almost two dozen exceptions. Wis. Stat. § 146.82(2). Should

all of them operate as exceptions to Wis. Stat. § 905.04(2)?

Such an outcome could only be achieved by legislating words into

the statutory text.

¶221 The fact that Wis. Stat. § 905.04(2) and Wis. Stat.

§ 146.82 may be in pari materia does not alter the analysis.

"[S]tatutes which are in pari materia are to be read together

and harmonized where that is possible." State v. Walker, 75

Wis. 2d 93, 102, 248 N.W.2d 410 (1977) (citation omitted); see

also In pari materia, Black's Law Dictionary 911 (10th ed. 2014)

("It is a canon of construction that statutes that are in pari

materia may be construed together, so that inconsistencies in

one statute may be resolved by looking at another statute on the
same subject."). But there is nothing to harmonize here; the

two statutes are consistent with each other. There might be

legitimate reasons for the existence of a judicial-order

exception in one statute but not the other. See, e.g., State v.

Denis L. R., 2005 WI 110, ¶57 n.21, 283 Wis. 2d 358, 699

N.W.2d 154 (Wis. Stat. § 905.04 and Wis. Stat. § 146.82 "must be

read together in pari materia to avoid any conflicts" (emphasis

added).). Further, there is no ambiguity to resolve in Wis.
Stat. § 905.04(2) for purposes of this case that would require

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reference to Wis. Stat. § 146.82; Wisconsin Stat. § 905.04(2) is

clear in its effect. We cannot ignore the plain language of the

privilege statute and create an exception where none exists

simply to reach a desired result. That is why, under the

Shiffra-Green framework, if the privilege-holder does not

consent to review of her records, those records are not

reviewed——even if a defendant makes a Green showing.13

¶222 The State's second proposed remedy is for courts to

"balance," in each individual case, "the defendant's

constitutional rights against the witness's right to privacy in

her privileged records" and against the State's interests. Put

differently, the State argues that after a defendant makes a

Green showing and the privilege-holder refuses to consent to

review of her records, courts should conduct a balancing

13
At one point in its brief the State characterizes use of
Wis. Stat. § 146.82(2)(a)4. as a "graft[ing]" of a
"constitutional exception" to Wis. Stat. § 905.04. The State
seems to be arguing that § 905.04 would be unconstitutional as
applied in certain cases because it does not contain an
exception allowing the defendant access to privileged records.

One of the benefits of the Shiffra-Green framework is that
it alleviates concerns about the protection of the defendant's
constitutional rights without requiring consideration of the
potential invalidation of Wis. Stat. § 905.04. Cf. Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006)
("Generally speaking, when confronting a constitutional flaw in
a statute, we try to limit the solution to the problem. . . .
[W]e try not to nullify more of a legislature's work than is
necessary, for we know that '[a] ruling of unconstitutionality
frustrates the intent of the elected representatives of the
people'" (citation omitted).); Shelby County, Ala. v. Holder,
570 U.S. ___, 133 S. Ct. 2612, 2631 (2013) ("Striking down an
Act of Congress 'is the gravest and most delicate duty that this
Court is called on to perform'" (citation omitted).).

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analysis in order to determine whether the privilege-holder may

nonetheless testify. The problem with this suggestion is that

this balancing is already built into the Shiffra-Green

framework. To be clear, the defendant is not entitled to a

fishing expedition of the alleged victim's privileged records.

In each case, in order to establish any claim to privileged

records, a defendant must "set forth, in good faith, a specific

factual basis demonstrating a reasonable likelihood that the

records contain relevant information necessary to a

determination of guilt or innocence and . . . not merely

cumulative to other evidence available to the defendant."

Green, 253 Wis. 2d 356, ¶34. The interests of a defendant who

has made this showing are weightier than the interests of a

defendant who has not made this showing, and sufficiently

weighty to require preclusion of a privilege-holder's testimony,

should the privilege-holder not consent to release of the

records. Further weighing is unnecessary and inappropriate.

See Shiffra, 175 Wis. 2d at 608-09 (analogizing the defendant's
initial burden to "cases in which a defendant seeks disclosure

of a government informant's identity," and stating, "[b]oth

situations require us to balance the defendant's constitutional

right to a fair trial against the state's interest in protecting

its citizens by upholding a statutorily created privilege.").

¶223 From all that has already been said, it is easy to see

why neither of the State's proposals provide an adequate remedy.

The first solution ignores the privilege-holder's statutory
right. The second solution ignores the defendant's

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constitutional right. Both thus upset the careful balance

struck by Shiffra and Green. See Solberg, 211 Wis. 2d at 387.

III. THE DISPOSITION OF THIS CASE

¶224 The amalgam of opinions in this case is potentially

confusing. In Johnson, 348 Wis. 2d 450 (per curiam),

reconsideration granted, 353 Wis. 2d 119 (per curiam), a similar

jumble of opinions required this court to grant a motion for

reconsideration to clarify its earlier opinion. See id.

Therefore, before I conclude, I wish to discuss briefly the

disposition of this case in order to provide guidance to the

litigants below so that the parties need not file, as they did

in Johnson, a motion in order to obtain clarification of the

effect of the court's decision. Simply stated, the parties in

this case are in the same position as the parties in Johnson:

the decision of the court of appeals remains the law of the

case.

¶225 More specifically, Justice Gableman, Chief Justice

Roggensack, and Justice Rebecca Bradley would overrule Shiffra
and Green and reverse the decision of the court of appeals.

But, because these three justices do not command a majority of

the court, Shiffra and Green are not overruled.

¶226 Justice Ann Walsh Bradley and Justice Abrahamson would

modify the Shiffra-Green framework and reverse the decision of

the court of appeals. But because these two justices do not

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command a majority of the court, the Shiffra-Green framework is

not modified.14

¶227 Although these five justices would all reverse the

decision of the court of appeals, no majority agrees on a

rationale for doing so. As no precedent is changed by the

opinions of these five justices, reversal of the court of

appeals would run contrary to existing precedent, namely Shiffra

and Green. See Johnson, 353 Wis. 2d 119, ¶5 (per curiam) ("The

14
To be clear, adhering to Shiffra and Green means adhering
to the single remedy established in that line of cases:
preclusion of the privilege-holder's testimony under the
circumstances specified in those cases. As we made clear in our
opinion granting the motion for reconsideration in Johnson, the
privilege-holder's "decision to produce and the consequence of
whether testimony is allowed cannot be separated." State v.
Johnson, 2014 WI 16, ¶5, 353 Wis. 2d 119, 846 N.W.2d 1 (per
curiam). By permitting additional remedies, Justice Ann Walsh
Bradley and Justice Abrahamson would, like the members of the
lead opinion, overrule Shiffra (albeit on grounds separate from
those relied upon by the members of the lead opinion) and
reverse the decision of the court of appeals below.

Although Justice Ann Walsh Bradley and Justice Abrahamson
agree with the court of appeals that Lynch made the Green
showing entitling him to in camera review of the complainant's
privileged mental health records, that part of the decision of
the court of appeals is not disputed, is not currently before
this court, and is not analyzed in the lead opinion. Instead,
this court is addressing whether the Shiffra-Green framework
should be overruled.

The court of appeals below applied the Shiffra-Green
framework as established in our case law, including the single
remedy provided for under that framework. See Lynch, 359
Wis. 2d 482, ¶¶39, 42. Justice Ann Walsh Bradley and Justice
Abrahamson would depart from that court's straightforward
application of Shiffra and Green. Thus, regardless of their own
descriptions of their opinion, Justice Ann Walsh Bradley and
Justice Abrahamson would simply reverse the decision of the
court of appeals.

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prior per curiam was incorrect to convey that a majority could

be reached by separating whether the medical records must be

produced from whether the victim may testify because such a

separation would produce new criteria that a majority of the

court has not authorized.").

¶228 Finally, Justice Prosser and I would today reaffirm

Shiffra, Green, and the Shiffra-Green framework and would affirm

the decision of the court of appeals. But as two justices, we

do not command a majority of the court.

¶229 Nevertheless, "no [four] justices reach agreement to

either affirm, reverse, or modify the decision of the court of

appeals consistent with precedent. Consequently, the court of

appeals decision remains the law of the case." Johnson, 353

Wis. 2d 119, ¶2 (per curiam). In other words, the law in

Wisconsin remains as it was before the appeal to this court

occurred. This case should not be read to overturn or modify

any existing law, including Shiffra and Green.15

IV. CONCLUSION
¶230 We should tread lightly in this complex area of the

law, upsetting precedent only when compelled to do so by some

"special justification." This court, myself included, can and

does overrule precedent when appropriate. Ultimately, however,

it is simply not evident that Shiffra is so unsound in principle

as to require this court to overturn it and its progeny. The

lead opinion wanders far beyond the confines of the briefing and

15
Hence, although I write in dissent, I dissent from the
lead opinion; I agree with the functional outcome of this case.

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 No. 2011AP2680-CR.akz

argument in this case, discarding the Shiffra-Green framework

despite incomplete knowledge of the many applicable

constitutional considerations. The potential for error here

(the same type of error which the State and lead opinion allege

occurred in Shiffra) is substantial. The fractured nature of

today's opinion, and of the opinion in Johnson, 348 Wis. 2d 450

(per curiam), demonstrate, at the very least, the doubtfulness

of whether Shiffra is in fact so incoherent as to justify its

rejection. When there is this much turmoil regarding the

vitality or not of a line of cases, it may well be advisable to

err on the side of caution. Johnson Controls, 264 Wis. 2d 60,

¶94 ("A court's decision to depart from precedent is not to be

made casually. It must be explained carefully and fully to

insure that the court is not acting in an arbitrary or

capricious manner. A court should not depart from precedent

without sufficient justification."). "Circuit courts and

counsel have functioned well using the Shiffra/Green analysis

for many years . . . ." Johnson, 353 Wis. 2d 119, ¶12 (per
curiam).

¶231 This court is more than simply the sum of its current

members. It is an institution that endures long after any one

individual justice leaves the bench. The public needs

certainty——a stable rule of law——not what amounts to a

collection of several law review articles by the members of this

court. The lead opinion may, in time, be proven correct by the

Supreme Court of the United States. Or, this court may be
compelled to revisit the Shiffra doctrine on the basis of future

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developments in related case law. But the State and the lead

opinion have not today provided the "special justification"

required to decide that we were wrong, in Green, to hew to the

Shiffra line of cases. Green, 253 Wis. 2d 356, ¶21 n.4.

¶232 I conclude that this court should not abandon the

Shiffra-Green framework and would therefore affirm the decision

of the court of appeals.16

¶233 For the foregoing reasons, I respectfully dissent.

16
The parties do not dispute whether the circuit court and
the court of appeals were correct in concluding that Lynch met
the Green showing for in camera review of the files at issue.
Without briefing, I do not address the question. However, I
emphasize again that the Green showing is not meant to be
perfunctory. See Green, 253 Wis. 2d 356, ¶¶33-35.

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