State v. Anthony James Jendusa

2021 WI 24

SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2357-LV

COMPLETE TITLE: In the matter of the commitment of:

State of Wisconsin,
Petitioner-Petitioner,
v.
Anthony James Jendusa,
Respondent-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS

OPINION FILED: March 10, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 26, 2020

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Joseph R. Wall

JUSTICES:
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined.
ZIEGLER, J., filed a dissenting opinion, in which ROGGENSACK,
C.J., and REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:

ATTORNEYS:

For the petitioner-petitioner, there were briefs filed by
Lisa E.F. Kumfer, assistant attorney general; with whom on the
briefs was Joshua L. Kaul, attorney general. There was an oral
argument by Lisa E.F. Kumfer.

For the respondent-respondent, there was a brief filed by
Dustin C. Haskell assistant state public defender. There was an
oral argument by Dustin C. Haskell.
 2021 WI 24

NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2357-LV
(L.C. No. 2016CI5)

STATE OF WISCONSIN : IN SUPREME COURT

In the matter of the commitment of:

State of Wisconsin, FILED
Petitioner-Petitioner, MAR 10, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Anthony James Jendusa,

Respondent-Respondent.

DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined.
ZIEGLER, J., filed a dissenting opinion, in which ROGGENSACK,
C.J., and REBECCA GRASSL BRADLEY, J., joined.

REVIEW of an order of the Court of Appeals. Affirmed and

cause remanded.

¶1 REBECCA FRANK DALLET, J. Anthony Jendusa seeks

discovery of a Wisconsin Department of Corrections (DOC)

database in an effort to challenge the sexually violent person

commitment proceeding initiated against him over four years ago.

Jendusa believes that the DOC's Wisconsin-specific data provides
a more relevant basis upon which to calculate his risk of
 No. 2018AP2357-LV

engaging in future acts of sexual violence——a calculation that

may result in a lower estimate of his risk than that advanced by

the State's expert witness. He argues that the database is

discoverable pursuant to both Wis. Stat. § 980.036 (2019-20)1 and

the Fourteenth Amendment to the United States Constitution as

interpreted in Brady v. Maryland, 373 U.S. 83 (1963). The State

disagrees with Jendusa's interpretation of § 980.036 and the

applicability of Brady. It further argues that disclosing the

DOC database may violate state and federal health-privacy laws.

¶2 This case comes before us as a review of the court of

appeals' denial of the State's petition for leave to file an

interlocutory appeal of the circuit court's discovery order.2 We

hold that the court of appeals did not erroneously exercise its

discretion in denying that petition. We nevertheless reach the

underlying merits of that petition and conclude that the DOC

database is discoverable pursuant to Wis. Stat. § 980.036(5).

Accordingly, we affirm the court of appeals' order and further

conclude that the circuit court did not err when it granted
Jendusa's discovery request. We remand the cause to the circuit

court for further proceedings consistent with this opinion.

1 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
2 State v. Jendusa, No. 2018AP2357-LV, unpublished order
(Wis. Ct. App. July 16, 2019) (denying the State's petition for
leave to appeal a non-final order of the Circuit Court for
Milwaukee County, the Honorable Joseph R. Wall presiding).

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I. BACKGROUND

¶3 In December 2016, the State petitioned to commit

Jendusa as a sexually violent person pursuant to Wis. Stat.

ch. 980. At the probable cause hearing, Dr. Christopher Tyre, a

licensed psychologist employed by the DOC, testified that

Jendusa met the statutory definition of a sexually violent

person.3 Dr. Tyre stated that he assessed Jendusa's likelihood

of engaging in one or more future acts of sexual violence over

Jendusa's lifetime using the Static-99 and Static-99R

assessments (as informed by the Rapid Risk Assessment for Sex

Offense Recidivism (RRASOR) and the Sex Offender Treatment

Intervention and Progress Scale (SOTIPS)).4 Dr. Tyre reported

3 "Sexually violent person" is defined as one "who has been
convicted of a sexually violent offense . . . and who is
dangerous because he or she suffers from a mental disorder that
makes it likely that the person will engage in one or more acts
of sexual violence." Wis. Stat. § 980.01(7). "Likely," in
turn, means "more likely than not," § 980.01(1m), which courts
interpret to mean the person has a more than 50-percent chance
of engaging in a future act of sexual violence over his or her
lifetime. See State v. Richard, 2011 WI App 66, ¶3, 333
Wis. 2d 708, 799 N.W.2d 509 (citing State v. Smalley, 2007
WI App 219, ¶¶3, 10, 305 Wis. 2d 709, 741 N.W.2d 286).
4 Sex-offender risk assessments generally fall into two
categories: those that measure "static" risk factors, and those
that measure "dynamic" risk factors. The Static-99, the Static-
99R, and the RRASOR are static assessments. The RRASOR assesses
recidivism based on sexual deviance; the Static-99 and
Static-99R consider six additional risk factors to assess
recidivism based on a more general criminal or antisocial
disposition. Dr. Tyre testified that because the Static-99
instruments measure a person's general antisocial disposition,
there is a potential for "noise" in estimating the more
particularized likelihood of committing a future act of sexual
violence. He explained that the RRASOR, with its sexual
deviance focus, helps him address that "noise."

3
 No. 2018AP2357-LV

his conclusions in his Special Purpose Evaluation, which was

received into evidence.5

¶4 According to Dr. Tyre, each assessment is based on the

same foundational method. Researchers observed several groups

of sex offenders after their release to see whether they

recidivated.6 The proportion of those who recidivated provided

the researchers with a "base rate," or the general likelihood of

re-offense across the studied population. For the Static-99,

The SOTIPS assesses dynamic risk. Dynamic risk assessments
attempt to adjust the static assessments' estimated likelihood
of future sexual violence by accounting for fluid behavioral
factors, such as adjustment to supervision, self-management,
compliance within an institutional setting, and continued sexual
interests or deviance.
5During the roughly three months between the initial
detention order and the subsequent probable cause hearing,
Dr. Tyre twice updated his Special Purpose Evaluation. Neither
update changed the substance of his conclusion that Jendusa met
the statutory criteria for civil commitment as a sexually
violent person.
6For purposes of the actuarial risk assessments,
"recidivism" is defined as an arrest or conviction for a new sex
offense within a specified time period of 5, 10, or 15 years.
In the ch. 980 context, this definition is imperfect. On the
one hand, the risk assessments underestimate the likelihood of
future sexual violence because numerous sex offenses go
unreported or uncharged and because a ch. 980 commitment is
based on an offender's lifetime risk. On the other hand, this
definition overestimates the likelihood of future sexual
violence because it encompasses sex offenses beyond the narrower
subset of "sexually violent offense[s]" relevant to ch. 980.
See Wis. Stat. § 980.01(6). For these reasons, this opinion
differentiates between a "re-offense," which, like recidivism,
refers to a subsequent arrest or conviction for a sex offense,
and a "future act of sexual violence," which encapsulates all
statutorily defined sexually violent offenses regardless of
whether they are reported or result in a criminal complaint.

4
 No. 2018AP2357-LV

which studied Canadian and Danish offenders, the researchers

observed that a small subset of the studied groups recidivated

at a higher rate despite similar risk factor scores as those in

the other groups. To account for this variability, the

researchers divided the groups into two comparison

"norms": "routine" and "high-risk/high-needs." Each norm has

its own base rate, with the high-risk/high-needs norm's base

rate being the higher of the two.

¶5 In order to assess an individual using one of these

instruments, an examiner first determines the norm, and thus the

base rate, that is the most apt comparison for the individual.

The examiner then numerically scores the individual based on the

presence and severity of certain risk factors that have been

found to correlate positively with sexual recidivism. The sum

of those scores places the individual into a risk category. The

examiner then cross-references that risk category with the

selected norm's base rate to calculate a range of "absolute"

recidivism rates. These "absolute" rates purport to predict the
likelihood that the assessed individual will commit another sex

offense over future periods of time (e.g., in the next five or

ten years).

¶6 Dr. Tyre testified that he assigned Jendusa the

high-risk/high-needs norm and that Jendusa's total scores placed

him in the high-moderate risk category on the RRASOR assessment

and in the above-average risk category on the two Static-99

assessments. Applying those risk categories to the high-

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 No. 2018AP2357-LV

risk/high-needs norm's base rate, Dr. Tyre predicted that

Jendusa has the following absolute recidivism rates:

 52 percent over 15 years (according to the

Static-99);

 33 to 37 percent over ten years (according to the

Static-99R); and

 17 to 25 percent over five years (according to

the Static-99R).

Dr. Tyre stated that Jendusa's score on the SOTIPS, which

additionally considered several of Jendusa's dynamic risk

factors, indicated that Jendusa's absolute recidivism rate was

likely slightly higher than that estimated by the Static-99 and

Static-99R. Dr. Tyre also acknowledged that certain mitigating

factors, such as Jendusa's age (51 years old) and his

participation in sex-offender programming, slightly reduced

Jendusa's likelihood to engage in future acts of sexual

violence; yet Dr. Tyre ultimately concluded that Jendusa is more

likely than not to engage in a future act of sexual violence.
¶7 On cross-examination, Dr. Tyre revealed that the DOC

maintains a Wisconsin-specific database of individuals that it

has evaluated for sexually violent person commitments and that

he was in the beginning stages of analyzing this data. Dr. Tyre

testified that nearly two years prior, one of his colleagues had

emailed him the preliminary results of that analysis, including

a Wisconsin-specific base rate, but Dr. Tyre claimed he had not

6
 No. 2018AP2357-LV

yet reviewed that email.7 Nevertheless, he acknowledged that the

Wisconsin-specific base rate could be lower than the base rates

in the Static-99 or Static-99R, and that a lower base rate may

affect his assessment of Jendusa's likelihood to engage in a

future act of sexual violence.

¶8 Based on Dr. Tyre's evaluation, the circuit court

found probable cause to believe that Jendusa is a sexually

violent person, ordered the DOC to detain him, and bound him

over for trial pursuant to Wis. Stat. § 980.04(3).

¶9 Jendusa then moved the circuit court to order the DOC

to disclose its database so that he could have an expert analyze

the Wisconsin-specific base rate citing Wis. Stat.

§ 980.036(2)(h), (2)(j), and (5), as well as the Fifth and

Fourteenth Amendments to the United States Constitution.

Jendusa argued that the database is potentially exculpatory

evidence——it either tends to show he does not meet the

commitment criteria or impeaches Dr. Tyre's evaluation——because

the Wisconsin-specific base rate may be lower than the base
rates Dr. Tyre employed to evaluate him. Application of a lower

Wisconsin-specific base rate, in turn, could result in a

7Nearly two years prior to the hearing, Dr. Tyre's co-
researcher compared the names of the offenders in the DOC
database against Wisconsin court records in the Consolidated
Court Automation Programs and produced a de-identified database
containing information on who recidivated and their respective
scores on various actuarial instruments. For purposes of this
opinion, "de-identified" means that all personally identifying
information, such as an individual's name and birthdate, is
removed.

7
 No. 2018AP2357-LV

predicted lifetime recidivism risk below 50 percent, undermining

the State's contention that Jendusa is "likely" to engage in

future acts of sexual violence. Jendusa also argued that the

database was exculpatory impeachment material because a

Wisconsin-specific base rate may better capture unique cultural

and social features not present in the Canadian and Danish

samples represented in the Static-99.8

¶10 The State opposed disclosure on three grounds. It

first argued that the database is not in the State's

"possession" because it is in the DOC's possession. Second, the

State argued that the database itself cannot be exculpatory

since only an analysis of that data could reveal a different

base rate, which may or may not be lower than the one used by

Dr. Tyre. The State argued that therefore there is no statutory

or constitutional requirement to disclose the data itself.

Finally, the State claimed that Jendusa has an adequate

alternative remedy via a research request pursuant to the DOC's

Executive Directive #36 ("Directive #36"), "Human Subject
Research Requests Process and Procedure." See https://doc.wi.go

v/DataResearch/ConductingResearch/WIDOCExecutiveDirective36.pdf.

The State maintained that because Directive #36 was developed in

See R. Karl Hanson et al., What Sexual Recidivism Rates
8

Are Associated with Static-99R and Static-2002R Scores?, 28
Sexual Abuse: J. Rsch. & Treatment 218, 241 (2015)
(recommending that evaluators use "local STATIC norms" because
they "can account for the unique cultural and social features of
a specific jurisdiction").

8
 No. 2018AP2357-LV

accordance with state and federal health-privacy laws, it is the

exclusive means of accessing such sensitive "medical" data.

¶11 In fact, Jendusa had requested the data under

Directive #36, but to no avail. The DOC's Research Review

Committee approved his request, but later communications between

Jendusa and the DOC's lead research analyst indicated that the

DOC was confused about which database Jendusa had requested.

Their correspondence also revealed that the lead research

analyst was working with Dr. Tyre to identify the database.

Eventually, the DOC told Jendusa that he had to sign a

memorandum of understanding before it could transfer any data to

him and that it was in the process of drafting that memorandum.

The DOC never forwarded that memorandum, and it has yet to

transfer the database to him.

¶12 Jendusa similarly encountered obstacles in court.

After learning that Dr. Tyre had received a preliminary analysis

of a Wisconsin-specific base rate, Jendusa requested by subpoena

duces tecum that Dr. Tyre produce the database and the
preliminary analysis.9 The State made no attempt to quash the

subpoena; yet, on the advice of the DOC's counsel, Dr. Tyre

appeared at the motion hearing without the database or the

preliminary analysis.

¶13 The circuit court then ordered Dr. Tyre to "personally

open and read the spreadsheet containing de-identified

A subpoena duces tecum is a request that the witness
9

produce not only himself or herself for live testimony but also
certain physical evidence.

9
 No. 2018AP2357-LV

recidivism data," "familiarize himself with the contents of that

file and be prepared to testify about said contents," and "bring

a copy of the aforementioned de-identified file so as to refer

to the file if need be." Dr. Tyre, again on the advice of the

DOC's counsel but without objecting to the circuit court's

order, did not bring the de-identified database to court. He

did, however, review the database and his colleague's

preliminary analysis. He testified that roughly 7 percent of

the 913 Wisconsin sex offenders in the database were convicted

of a new sex offense. That number, according to Dr. Tyre,

required additional follow-up and refinement to verify. Still,

Dr. Tyre confirmed that this preliminary base rate was roughly

one-third of the base rate he relied on to predict Jendusa's

recidivism risk.

¶14 After hearing Dr. Tyre's testimony, the circuit court

ordered the DOC to transmit the full, unredacted database to

Jendusa so that Dr. David Thornton, the court-appointed

psychologist and co-creator of the Static-99, could analyze it.
Dr. Thornton's role was limited to analyzing the data to

"determine recidivism information." The circuit court stayed

its order pending resolution of the State's petition for leave

to appeal that non-final order. The court of appeals denied the

State's petition, stating only that the petition "fails to

satisfy the criteria for permissive appeal." State v. Jendusa,

No. 2018AP2357-LV, unpublished order (Wis. Ct. App. July 16,

2019).

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¶15 We granted review of the court of appeals' denial of

the State's petition for interlocutory appeal and further

directed the parties to address the underlying substantive

issues related to the circuit court's discovery order.10

II. STANDARD OF REVIEW

¶16 We review for an erroneous exercise of discretion the

court of appeals' denial of the State's petition for

interlocutory appeal. See Wis. Stat. § 808.03(2); Leavitt v.

Beverly Enters., Inc., 2010 WI 71, ¶42, 326 Wis. 2d 421, 784

N.W.2d 683. The court of appeals erroneously exercises its

discretion when it applies the wrong legal standard or makes a

decision not reasonably supported by the facts of record. See

State v. Avery, 2013 WI 13, ¶23, 345 Wis. 2d 407, 826 N.W.2d 60.

¶17 We review de novo the circuit court's interpretation

and application of Wis. Stat. § 980.036 as the basis for

ordering the disclosure of the DOC database. See Moreschi v.

Vill. of Williams Bay, 2020 WI 95, ¶13, 395 Wis. 2d 55, 953

N.W.2d 318.
III. ANALYSIS

¶18 We begin by reaffirming our longstanding and sound

practice of typically not reviewing the court of appeals'

We asked the parties to address whether the DOC database
10

was discoverable on grounds outside of Wis. Stat. ch. 980,
including Brady v. Maryland, 373 U.S. 83 (1963). We also
directed the parties to brief the applicability of Wisconsin and
federal health-privacy laws. Because we uphold the discovery
order under Wis. Stat. § 980.036(5), we do not address these
additional questions.

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discretionary denial of a petition for interlocutory appeal.

Additionally, we clarify that the court of appeals need not

explain why it denied leave to file an interlocutory appeal.

Although we conclude that the court of appeals did not err in

denying the State's petition for interlocutory appeal, we

address the merits of that appeal and determine that the DOC

database is "raw data" that is discoverable under Wis. Stat.

§ 980.036(5).

A. Review of Interlocutory Appeal Denials

¶19 Wisconsin Stat. § 808.03(2) governs appeals from

non-final orders:

(2) Appeals by permission. A judgment or order not
appealable as a matter of right under sub. (1) may be
appealed to the court of appeals in advance of a final
judgment or order upon leave granted by the court if
it determines that an appeal will:

(a) Materially advance the termination of the
litigation or clarify further proceedings in the
litigation;

(b) Protect the petitioner from substantial or
irreparable injury; or

(c) Clarify an issue of general importance in the
administration of justice.
The plain language of § 808.03(2) entrusts to the court of

appeals discretion over interlocutory appeals. As a matter of

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well-settled practice,11 we respect this legislative choice by

generally not reviewing a court of appeals' decision to decline

a petition for interlocutory appeal. See Leavitt, 326

Wis. 2d 421, ¶47.

¶20 There are several sound reasons for this practice. To

do otherwise would "divest" the court of appeals of a power

explicitly "entrusted to it" by the legislature. Id. (quoting

Aparacor, Inc. v. DILHR, 97 Wis. 2d 399, 404, 293 N.W.2d 545

(1980)). Moreover, by affording litigants two opportunities to

seek leave to appeal non-final orders, we would encourage more

interlocutory appellate practice. Such a practice would

undermine the two purposes of Wis. Stat. § 808.03: "(1) to

11This court has jurisdiction to review a denial of leave
to file an interlocutory appeal under both the Wisconsin
Constitution and Wis. Stat. § 808.10(1). See Leavitt v. Beverly
Enters., Inc., 2010 WI 71, ¶46, 326 Wis. 2d 421, 784 N.W.2d 683
("[T]he Wisconsin Constitution provides that we have 'appellate
jurisdiction over all courts' and we 'may review judgments and
orders of the court of appeals.'" (quoting Wis. Const. art. VII,
§ 3(2)-(3))); see also § 808.10(1) ("A decision of the court of
appeals is reviewable by the supreme court only upon a petition
for review granted by the supreme court."). We acknowledge that
language from our cases decided shortly after the creation of
the court of appeals might be read to mean this court lacks
jurisdiction to review such denials. See Aparacor, Inc. v.
DILHR, 97 Wis. 2d 399, 403–04, 293 N.W.2d 545 (1980) ("Where the
court of appeals denies permission to appeal from an order
conceded by the parties to be nonfinal, no review by this court
is permitted."); State v. Whitty, 86 Wis. 2d 380, 388, 272
N.W.2d 842 (1978); State v. Jenich, 94 Wis. 2d 74, 77 n.2, 97D,
288 N.W.2d 114 (1980), modified per curiam on reconsideration,
94 Wis. 2d 74, 292 N.W.2d 348 (1980). As we clarified in
Leavitt, however, this "strong" language is not a jurisdictional
holding but rather an endorsement of our practice of not
reviewing denials of petitions for interlocutory appeal.
Leavitt, 326 Wis. 2d 421, ¶¶45-47.

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protect the trial proceedings by avoiding unnecessary

interruptions and delay caused by multiple appeals[;] and (2) to

reduce the burden on the court of appeals by limiting the number

of appeals to one appeal per case and allowing piecemeal appeals

only under the special circumstances set forth in

[§] 808.03(2)." Heaton v. Larsen, 97 Wis. 2d 379, 395–96, 294

N.W.2d 15 (1980). Given these considerable disadvantages, we

reaffirm that this court will generally not review the court of

appeals' denial of a petition for interlocutory appeal.12

The court has routinely declined to encroach upon the
12

court of appeals' discretion regarding certain classes of
interlocutory appeals despite compelling reasons to do so. See
Lassa v. Rongstad, 2006 WI 105, ¶¶84-89, 294 Wis. 2d 187, 718
N.W.2d 673 (declining to require the court of appeals to
categorically grant petitions for interlocutory appeal regarding
discovery orders in defamation cases even where constitutional
privileges are implicated); State ex rel. Hass v. Wis. Ct. of
Appeals, 2001 WI 128, 248 Wis. 2d 634, 636 N.W.2d 707 (same
regarding denied motions for issue or claim preclusion based on
a final federal judgment despite federal-state court comity
concerns); Jenich, 94 Wis. 2d 74, 97A n.1 (as modified per
curiam on reconsideration) (same regarding denied motions to
dismiss based on double jeopardy, despite the substantial and
irreparable harm of subjecting a defendant to an unlawful second
trial).

This court has directed the court of appeals to grant
petitions for interlocutory appeal as a matter of course
pursuant to our constitutional superintending power in only one
circumstance: qualified immunity. See Arneson v.
Jezwinski, 206 Wis. 2d 217, 556 N.W.2d 721 (1996). We reached
that conclusion on exceptionally strong grounds: denial of
those petitions for interlocutory appeal would result in no
adequate remedy for the person seeking immunity and in the
potentially needless cost and hardship of litigating a case
where the defendant is ultimately immune from liability.
Id. at 226–30.

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¶21 That conclusion also leads us to reject the parties'

request to extend State v. Scott, 2018 WI 74, 382 Wis. 2d 476,

914 N.W.2d 141. In Scott, we held that, in order to "facilitate

judicial review," the court of appeals must explain the reasons

for its discretionary decisions. Id., ¶¶38-41. But Scott's

rationale is inapposite here; when the court of appeals denies a

petition for interlocutory appeal, there generally is no

judicial review to facilitate. See Leavitt, 326 Wis. 2d 421,

¶47. And in the rare instance that we do review such denials,

we do so for larger policy considerations that transcend the

particulars of any one case and that are unrelated to any

reasons articulated by the court of appeals. See Arneson v.

Jezwinski, 206 Wis. 2d 217, 556 N.W.2d 721 (1996). Therefore,

it is not necessary for the court of appeals to explain why it

denied a party leave to file an interlocutory appeal.

¶22 In this case, the court of appeals concluded "that the

petition fails to satisfy the criteria for permissive appeal,"

citing Wis. Stat. § 808.03(2). As § 808.03(2) is the correct
legal standard governing such decisions and the court of appeals

reasonably determined the petition did not satisfy those

criteria, we conclude that the court of appeals did not

erroneously exercise its discretion. See Avery, 345

Wis. 2d 407, ¶23.

B. The Discoverability of the DOC Database

¶23 We proceed with a de novo review of the circuit

court's order and interpret Wis. Stat. § 980.036 as it applies
to the DOC database. The general discovery provisions set forth

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in Wis. Stat. ch. 804 do not apply to a Wis. Stat. ch. 980

proceeding. Wis. Stat. § 980.036(11). In such a proceeding,

§ 980.036 provides the "only methods of obtaining discovery."

Id. Jendusa contends that the DOC database is discoverable

under the following three subsections of § 980.036:

(2) What a Prosecuting Attorney Must Disclose to a
Person Subject to this Chapter. Upon demand, a
prosecuting attorney shall disclose to a person
subject to this chapter or his or her attorney, and
permit the person subject to this chapter or his or
her attorney to inspect and copy or photograph, all of
the following materials and information, if the
material or information is within the possession,
custody, or control of the state:

. . .

(h) The results of any physical or mental
examination or any scientific or psychological
test, instrument, experiment, or comparison that
the prosecuting attorney intends to offer in
evidence at the trial or proceeding, and any raw
data that were collected, used, or considered in
any manner as part of the examination, test,
instrument, experiment, or comparison.

. . .

(j) Any exculpatory evidence.

. . .

(5) Testing or Analysis of Evidence. On motion of a
party, the court may order the production of any item
of evidence or raw data that is intended to be
introduced at the trial for testing or analysis under
such terms and conditions as the court prescribes.
¶24 We focus on the plain language of § 980.036. "If the

meaning of the statute is plain, we ordinarily stop the
inquiry." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004

16
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WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted source

omitted). If not specially defined or technical, statutory

language "is given its common, ordinary, and accepted meaning."

Id. We read statutory provisions in context rather than in

isolation and in a way that "avoid[s] absurd or unreasonable

results." Id., ¶46.

¶25 We begin with subsec. (5) because it is the broadest

provision. The first clause of subsec. (5), "[o]n motion of a

party," unambiguously applies to motions by either party. Here,

that clause was satisfied when Jendusa moved the circuit court

for the DOC database's disclosure.

¶26 The second clause, "the court may order the

production," indicates that if the requested item meets the

other criteria in subsec. (5), then the circuit court has

discretion to order its production. That is because we

traditionally interpret "may" as permissive, Waukesha Cnty. v.

S.L.L., 2019 WI 66, ¶36, 387 Wis. 2d 333, 929 N.W.2d 140, and to

"impl[y] a discretionary element," Swatek v. Cnty. of Dane, 192
Wis. 2d 47, 59, 531 N.W.2d 45 (1995). To that end, subsec. (5)

further empowers the circuit court to order the production of

applicable evidence "under such terms and conditions as the

court prescribes." Read together, these clauses afford the

circuit court wide discretion regarding not only whether a

requested item should be produced but also the manner and

conditions of its production.

¶27 Next, subsec. (5) covers only "item[s] of evidence" or
"raw data." Jendusa contends that the DOC database, at least in

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the format that he requests it, is raw data. "Data," according

to its dictionary definition,13 can mean "[f]actual information,

especially information organized for analysis or used to reason

or make decisions" or "information represented in a form

suitable for processing by computer." Data, The American

Heritage Dictionary of the English Language 475 (3d ed. 1992).

The modifier "raw" signifies that the data has "[n]ot . . . been

subjected to adjustment, treatment, or analysis." Raw, American

Heritage Dictionary, supra, at 1502. This dictionary definition

of "raw data" comports with the term's common use in the social

science research context as "information that is gathered for a

research study before that information has been transformed or

analyzed in any way."14 Raw Data, Encyclopedia of Survey

Research Methods (Paul J. Lavrakas ed., 2008); see also Feist

Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)

(defining "raw data" as "wholly factual information not

accompanied by any original written expression").

¶28 The DOC database fits the definition of "raw data."
As it is described in the record, the database contains

unprocessed information, such as individuals' names and

13"[W]e may ascertain the term's plain and ordinary meaning
through sources such as dictionaries." E.g., State v. Hager,
2018 WI 40, ¶29, 381 Wis. 2d 74, 911 N.W.2d 17.
14"A court 'should assume the contextually appropriate
ordinary meaning unless there is reason to think otherwise.'"
State v. Steffes, 2013 WI 53, ¶25, 347 Wis. 2d 683, 832
N.W.2d 101 (quoting Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 69 (2012)).

18
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birthdates, criminal histories, mental health diagnoses, and

scores on various actuarial assessments. That information is

organized by column, and an individual's unique numerical score

in each category is inputted in the intersecting row associated

with that individual. In this form, which is how Jendusa has

requested it, the data will not have been processed or analyzed.

Thus, this matrix of unprocessed, factual information

constitutes "raw data."

¶29 But while satisfying the definition of raw data is

necessary, it is not sufficient. The purview of subsec. (5)

extends only to raw data that is "intended to be introduced at

the trial." Unlike the neighboring subsecs. (2) and (3), both

of which speak to evidence that a specific party intends to

introduce, subsec. (5) contains no similar limitation. Thus,

subsec. (5) must apply to raw data that either party intends to

introduce at trial. See State v. A.L., 2019 WI 20, ¶17, 385

Wis. 2d 612, 923 N.W.2d 827 ("When the legislature uses

different terms in a statute, the terms are presumed to have
distinct meanings.").

¶30 That leaves a final interpretive question: what does

it mean to intend to introduce raw data at trial? The State

suggests that because Jendusa did not intend to introduce only

the DOC's raw data, subsec. (5) does not apply. That reading is

overly formalistic and disregards the context of ch. 980. We

must instead interpret the plain language of subsec. (5) "in the

context in which it is used." See Kalal, 271 Wis. 2d 633, ¶46.
In the ch. 980 context, raw data is data that informs an

19
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expert's analysis regarding the risk a respondent will engage in

future acts of sexual violence. But without that analysis, the

raw data alone has no probative value. Indeed, the language of

subsec. (5) reflects this reality in that it acknowledges the

purpose of requesting raw data is to subject it to "testing or

analysis." Thus, in the ch. 980 context, the only reasonable

reading of "raw data that is intended to be introduced at the

trial" is that the analysis of the raw data is intended to be

introduced.

¶31 Therefore, Jendusa's intent to introduce an analysis

of the DOC's raw data at trial satisfies the requirement in

subsec. (5) that he intend to introduce the raw data.15 Because

15 The State levels a cursory argument that, under Burnett
v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), the circuit court
can never order a court-appointed expert to perform an analysis
of data. This argument misunderstands the Alt privilege and
ignores the facts of this case. The Alt court announced that
experts have an implied legal privilege to refuse to provide
expert testimony. Id. at 86. So, "absent a showing of
compelling circumstances, an expert cannot be compelled to give
expert testimony whether the inquiry asks for the expert's
existing opinions or would require further work." Id. at 89.
Alt based this privilege on the text of Wis. Stat. § 907.06,
which predicated a court's appointment of an expert witness on
the expert witness' "consent[]." Id. at 86 ("If a court cannot
compel an expert witness to testify, it logically follows that a
litigant should not be able to so compel an expert.").

Alt is of no avail to the State for two reasons. First,
the State concedes in its brief that "Dr. Thornton has no
objection" to this court appointment or to analyzing this data,
and so § 907.06 permits both. Second, only the privilege
holder——here, Dr. Thornton——can invoke the privilege, and he has
not done so. Cf. 7 Daniel D. Blinka, Wisconsin Practice Series:
Wisconsin Evidence § 504.3, at 410 (4th ed. 2017) ("A party to a
lawsuit cannot invoke the [patient-provider] privilege unless he
or she is the holder . . . .").

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the DOC database is discoverable under subsec. (5), there is no

need to address whether it is also discoverable under Wis. Stat.

§ 980.036(2)(h) or (j). See Maryland Arms Ltd. P'ship v.

Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15.

¶32 Of course, in addition to the conditions of

subsec. (5), a defendant's request for raw data must also

satisfy the other rules of evidence. In particular, the raw

data requested must be relevant to the case. See Wis. Stat.

§ 904.02. That is, a defendant must show that the raw data has

some tendency to make more probable his claim that he is not

likely to commit future acts of sexual violence. See Wis. Stat.

§ 904.01. After all, subsec. (5) does not authorize a fishing

expedition for any raw data based on speculation that an

analysis of that data might be relevant.

¶33 Here, Jendusa's request for raw data satisfies this

relevance requirement. Dr. Tyre testified that, although he did

not conduct a full analysis of the DOC's data, his colleague's

preliminary analysis indicated that it may be exculpatory.
Jendusa is not required to wait for the State to conduct a full

analysis in order to prove its relevancy. Such an analysis is

likely not forthcoming given that the preliminary analysis

suggests that the DOC may be overestimating the recidivism risk

for offenders such as Jendusa. Dr. Tyre's testimony is

sufficient to establish that the DOC database is relevant to

Jendusa's defense. Therefore, we conclude that the circuit

court permissibly granted Jendusa's motion requiring the DOC to
produce the database for Jendusa to analyze.

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¶34 Finally, we reject the State's argument that the

circuit court cannot order the State to turn over the DOC

database because the database is not in the State's possession.16

The thrust of the State's argument is that the DOC "has no

connection" to Jendusa's Wis. Stat. ch. 980 proceeding, likening

the DOC to the state hospital in State v. Darcy N.K., 218

Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998). In Darcy N.K., the

court of appeals concluded that a child sexual assault victim's

psychiatric records were not in the State's possession because

the state hospital that held the records played no role in the

defendant's prosecution. Id. at 649-57. The hospital's sole

connection to the prosecution was treating the victim. That

stands in stark contrast to the critical role the DOC has and

continues to play in Jendusa's ch. 980 proceeding. It was a DOC

employee, Dr. Tyre, who evaluated Jendusa and, based on DOC

records, declared him eligible for commitment as a sexually

violent person. The circuit court relied upon that same DOC

employee's Special Purpose Evaluation and testimony to find
probable cause that Jendusa is a sexually violent person. And

it is the DOC who detained Jendusa following the probable cause

determination. Thus, far from having "no connection" to

16Unlike neighboring Wis. Stat. § 980.036(2) and (3),
§ 980.036(5) does not explicitly require that the requested
evidence be "within the possession, custody, or control of the
state." The significance of that phrase's absence in
subsec. (5), however, is left for another day because we
conclude for other reasons that the DOC is "the state" for
purposes of Jendusa's Wis. Stat. ch. 980 proceeding.

22
 No. 2018AP2357-LV

Jendusa's Wis. Stat. ch. 980 proceeding, the DOC is so

inextricably intertwined with this case that it qualifies as

"the state" for purposes of Wis. Stat. § 980.036.

¶35 Based on the foregoing analysis, we conclude that Wis.

Stat. § 980.036(5) provides the circuit court the discretion to

order the disclosure of raw data, like the DOC database, when

the respondent moves for such disclosure and intends to

introduce an analysis of that raw data at trial.

IV. CONCLUSION

¶36 We reaffirm our longstanding and sound practice of

typically not reviewing the court of appeals' discretionary

denial of a petition for interlocutory appeal. We hold that

when the court of appeals denies a petition for an interlocutory

appeal, it need not explain why. We conclude that, here, the

court of appeals did not erroneously exercise its discretion in

denying the State's petition for interlocutory appeal. Lastly,

we conclude that, pursuant to Wis. Stat. § 980.036(5), the

circuit court permissibly ordered the disclosure of the DOC
database for the purpose of testing or analysis because Jendusa

moved for such disclosure, he intends to introduce an analysis

of that raw data at his ch. 980 trial, and it is relevant to

that trial. Accordingly, we affirm the court of appeals' order

and the circuit court's discovery order and remand the cause to

the circuit court for further proceedings consistent with this

opinion.

23
 No. 2018AP2357-LV

By the Court.—The order of the court of appeals is

affirmed, and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.

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¶37 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I write

separately because the majority undermines our review of future

cases and misreads the plain language of the statute. The

majority errs when it concludes that the court of appeals does

not need to explain why it denies a party's motion for leave to

file an interlocutory appeal because of our general deference to

the court of appeals in this area. The majority also errs when

it concludes that the Department of Corrections' (DOC) database

is discoverable in this case under Wis. Stat. § 980.036(5)

because raw data has meaning only in the context of analysis.

These errors will impact not only this case, but will

detrimentally affect our review of the court of appeals in

future cases.

¶38 To reach its conclusions, the majority ignores our

prior cases and the choice of the legislature. It carves out an

exception from a general rule that allows us to review the

decisions of the court of appeals. Moreover, it reads language

into the statute that the legislature did not include.
¶39 I conclude that the court of appeals must explain its

reasoning when it denies a party's motion for leave to file an

interlocutory appeal. I also conclude that the DOC's database

is not discoverable under Wis. Stat. § 980.036(5)'s plain

language. Accordingly, I respectfully dissent.

I. THE COURT OF APPEALS MUST EXPLAIN ITS REASONING
WHEN IT EXERCISES ITS DISCRETION.
¶40 When a party moves for leave to file an interlocutory
appeal, the court of appeals is statutorily bound to assess

certain factors in making its determination. See Wis. Stat.
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 No. 2018AP2357-LV.akz

§ 808.03(2). The court of appeals may hear an appeal of a non-

final order "if it determines that an appeal will":

(a) Materially advance the termination of the
litigation or clarify further proceedings in the
litigation;

(b) Protect the petitioner from substantial or
irreparable injury; or

(c) Clarify an issue of general importance in
the administration of justice.
Id. "It is well settled that petitions seeking review of a

court of appeals' denial of leave to appeal are generally not

permitted." Leavitt v. Beverly Enterprises, Inc., 2010 WI 71,

¶47, 326 Wis. 2d 421, 784 N.W.2d 683 (quoted source omitted).

However, this general practice does not mean we do not have

jurisdiction to review these denials. Id., ¶5 ("Article VII,

§ 3 of the Wisconsin Constitution provides that this court has

jurisdiction to review an order issued by the court of

appeals.").

¶41 When we exercise our constitutional power to review

discretionary decisions of the court of appeals, we must have
some explanation of the court of appeals' reasoning. State v.

Scott, 2018 WI 74, ¶¶35-41, 382 Wis. 2d 476, 914 N.W.2d 141

(requiring the court of appeals to explain its reasoning when it

exercises its discretion). As we explained in Scott, "[o]ur

jurisprudence governing the proper exercise of circuit court

discretion is instructive in determining whether the court of

appeals must explain the reasons underlying its discretionary

decision-making." Id., ¶38. Accordingly, we may look to the
requirements we have placed upon the circuit courts and
2
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determine whether those requirements apply to the court of

appeals in the context of the denial of a motion for leave to

file an interlocutory appeal. I conclude that those

requirements do apply.

¶42 "When a circuit court exercises its discretion, it

must explain on the record its reasons for its discretionary

decision 'to ensure the soundness of its own decision making and

to facilitate judicial review.'" Id. (quoting Klinger v. Oneida

Cnty., 149 Wis. 2d 838, 847, 440 N.W.2d 348 (1989)). We require

this of circuit courts because "a circuit court's discretionary

decision 'is not the equivalent of unfettered decision-making.'"

Id. (quoting Hartung v. Hartung, 102 Wis. 2d 58, 66, 306

N.W.2d 16 (1981)). This requirement ensures that a circuit

court examined the relevant facts, applied the proper standard

of law, and used a rational process to arrive at a conclusion

that a reasonable judge would make. Id., ¶39. Absent an

explanation on the record, we cannot determine whether the

circuit court complied with this standard. Accordingly, as we
have held, "[i]f a circuit court fails to explain its exercise

of discretion on the record, it has erroneously exercised its

discretion." Id.

¶43 We have previously applied this rationale to the court

of appeals. See id., ¶¶40-41. Although we found no case "that

require[d] the court of appeals to explain the reasons

underlying its discretionary decisions," "the justification that

this court has relied upon to require a circuit court to explain
its discretionary decision-making applies equally to the court

3
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of appeals." Id., ¶40. "The court of appeals should explain

its discretionary decision-making to ensure the soundness of

that decision-making and to facilitate judicial review." Id.

¶44 This case presents us with an opportunity to reaffirm

the principle that we set forth in Scott. Instead of continuing

to require the court of appeals to explain its discretionary

decision-making, the majority balks and carves out an exception

not found in Scott's proclamation. See majority op., ¶¶20-21.

The majority reasons that because we "generally [do] not review

the court of appeals' denial of a petition for interlocutory

appeal," the court of appeals need not explain its reasoning for

a denial. Majority op., ¶20. However, the majority conflates

general deference with actual review. When we afford the court

of appeals or the circuit court deference, we are merely stating

that we will not second-guess their decision unless that

decision cannot be supported by the facts, law, or rationality.

See Scott, 382 Wis. 2d 476, ¶¶39-40 (applying the standard of

review to the court of appeals); Rechsteiner v. Hazelden, 2008
WI 97, ¶28, 313 Wis. 2d 542, 753 N.W.2d 496 (applying the

standard of review to the circuit court). However, for us to

understand whether a court of appeals' or circuit court's

decision can be supported by the facts, law, or rationality, we

must have that court's explanation of its reasoning. Without

4
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the reasoning, we have nothing to actually review, and our

constitutional power to review is gutted.1

¶45 This case exemplifies why this is so. Here, the court

of appeals denied, without explanation, the State's motion for

leave to appeal. The court of appeals merely stated that the

State's "petition fails to satisfy the criteria for permissive

appeal." However, when looking at the factors the court of

appeals must consider, at least one of them seems to be

implicated. The State here has alleged that it will face

"substantial or irreparable injury" if it is ordered to release

the DOC database. Presumably, the court of appeals disagreed.

Why? We will never know because the court of appeals never

explained its reasoning. We cannot know whether the court of

appeals examined the relevant facts, applied the proper standard

of law, or used a rational process to reach its conclusion. How

then are we to determine whether the court of appeals

erroneously exercised its discretion? We cannot.

¶46 Accordingly, the majority has now given the court of
appeals "unfettered decision-making" power over interlocutory

appeals. See majority op., ¶¶20-21. Without anything to

review, our "general deference" to the court of appeals

transforms into total deference to the court of appeals. Rather

For example, if a circuit court was to deny Jendusa's
1

request to admit certain evidence, but failed to explain its
reasons for denying the evidence, we would be left having to
guess why the circuit court denied Jendusa's request. Rather
than reviewing the circuit court's decision, we would be making
a decision as if we were the circuit court. This would
undermine any deference we afford the circuit court.

5
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than give the court of appeals total deference, I would require

the court of appeals to explain its reasoning when it denies a

party's motion for leave to file an interlocutory appeal so that

we have some basis to exercise our constitutional power to

review the court of appeals. Because the court of appeals did

not explain its decision, it erroneously exercised its

discretion.2

II. THE DOC DATABASE CANNOT BE DISCOVERED UNDER
WIS. STAT. § 980.036(5).
¶47 Moving to the underlying merits of the claim, the

majority incorrectly concludes that the State must disclose the

DOC database pursuant to the circuit court's order under Wis.

Stat. § 980.036(5). However, the majority impermissibly reads

language into the statute to reach this conclusion. Based on

the plain language, Jendusa cannot obtain the DOC database

because it was not intended to be introduced at trial.

¶48 Statutory interpretation "begins with the language of

the statute." State ex rel. Kalal v. Circuit Court for Dane

Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. "If

The majority does not explain how addressing the
2

underlying merits of this appeal does not "encroach upon the
court of appeals' discretion regarding certain classes of
interlocutory appeals . . . ." Majority op., ¶20 n.12. Indeed,
it seems contradictory to say that we will not encroach upon the
court of appeals' decision not to address the merits of an
appeal, then address the merits of the appeal. Moreover,
addressing the merits of this appeal when affirming the court of
appeals' dismissal is contrary to our longstanding doctrine that
"[w]hen the resolution of one issue disposes of an appeal, we
will not address additional issues." Barber v. Weber, 2006 WI
App 88, ¶19, 292 Wis. 2d 426, 715 N.W.2d 683 (citing Gross v.
Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938)).

6
 No. 2018AP2357-LV.akz

the meaning of the statute is plain, [then] we ordinarily stop

the inquiry." Id. We give statutory language "its common,

ordinary, and accepted meaning." Id. We give "technical or

specially-defined words or phrases" their "technical or special

definitional meaning." Id. "Context is important to meaning"

and must be interpreted "as part of a whole." Id., ¶46.

¶49 The legislature has limited the scope of discovery in

chapter 980 proceedings. Wis. Stat. § 980.036(11) ("This

section provides the only methods of obtaining discovery and

inspection in proceedings under this chapter."). Accordingly,

to receive the DOC database, Jendusa must show that it is

discoverable under one of the provisions of § 980.036. The

majority focuses its analysis on § 980.036(5).3 Section

3Because the majority concludes that the DOC's database is
discoverable under Wis. Stat. § 980.036(5), the majority does
not address the other bases upon which Jendusa argues he may
obtain the data, namely Wis. Stat. § 980.036(2)(h) and (2)(j).
However, Jendusa would still not be able to discover the DOC's
database under either of these provisions.

Wisconsin Stat. § 980.036(2)(h) provides that the
prosecuting attorney must disclose:

[t]he results of any physical or mental examination or
any scientific or psychological test, instrument,
experiment, or comparison that the prosecuting
attorney intends to offer in evidence at the trial or
proceeding, and any raw data that were collected,
used, or considered in any manner as part of the
examination, test, instrument, experiment, or
comparison.

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980.036(5) provides that "[o]n motion of a party, the court may

order the production of any item of evidence or raw data that is

intended to be introduced at the trial for testing or analysis

under such terms and conditions as the court prescribes."

(Emphasis added.) This language is as clear as it could be——

some party must intend to introduce at trial the raw data

requested. Neither the State nor Jendusa claimed they would

introduce the raw data at trial. As such, under the plain

language of the statute, Jendusa cannot obtain the DOC database

under Wis. Stat. § 980.036(5).

¶50 The majority asserts that it is "overly formalistic"

to comply with the plain language of the statute. Majority op.,

¶30. The majority concludes that "the only reasonable reading

of 'raw data that is intended to be introduced at the trial' is

(Emphasis added.) Here, the database was not "collected, used,
or considered in any manner as part of the examination, test,
instrument, experiment, or comparison." The State does not
intend to offer the database, or anything generated from the
database, at the trial or proceeding. Accordingly, the
prosecuting attorney is not required to disclose the DOC's
database to Jendusa under subsec. (2)(h).

Wisconsin Stat. § 980.036(2)(j) provides that the
prosecuting attorney must disclose "[a]ny exculpatory evidence."
Despite Jendusa's claim that the DOC's database may prove that
he does not meet the criteria for commitment, unanalyzed raw
data cannot serve as exculpatory evidence because it is unclear
whether testing "would produce inculpatory, exculpatory, or
inconclusive results," and the defendant cannot put an
"exculpatory spin" on the unanalyzed data to make it
discoverable. State v. Franszczak, 2002 WI App 141, ¶¶21, 23,
256 Wis. 2d 68, 647 N.W.2d 396. Here, the DOC's database is
unanalyzed raw data and thus not exculpatory evidence.
Accordingly, the prosecuting attorney is not required to
disclose the DOC's database to Jendusa under subsec. (2)(j).

8
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that the analysis of the raw data is intended to be introduced."

Id. The majority is wrong for two reasons. First, it ignores

our basic mandate that when the meaning of the statute is plain,

we stop the inquiry. See Kalal, 271 Wis. 2d 633, ¶45. As

explained above, the language could not be any clearer that the

raw data must be intended to be introduced at trial. Second,

the majority commits the basic error of reading language into

the statute. State v. Matasek, 2014 WI 27, ¶20, 353

Wis. 2d 601, 846 N.W.2d 811 ("We should not read into the

statute language that the legislature did not put in."). The

majority asserts intending to introduce the analysis of raw data

is the same as intending to introduce the raw data itself.

Majority op., ¶30. However, this is not what the statute

states. The statute states that only the "raw data that is

intended to be introduced at the trial" is discoverable. Wis.

Stat. § 980.036(5). The majority's contention is even more

confusing considering an expert's analysis would be "evidence."

As such, an expert's analysis of raw data is already
discoverable under § 980.036(5). Despite the majority's wishing

the language to be in the statute, it is not. The legislature

permitted a party to discover only the raw data that is intended

to be introduced——not its analysis or results of tests from the

raw data.

¶51 The majority's error is even more clear when comparing

Wis. Stat. § 980.036(5) to nearby statutes. See Kalal, 271

Wis. 2d 633, ¶46 ("[S]tatutory language is interpreted . . . in
relation to the language of surrounding or closely-related

9
 No. 2018AP2357-LV.akz

statutes . . . ."). Pursuant to section 980.036(2), the State

must disclose certain information to an individual subject to a

chapter 980 proceeding. Included in this information are both

the results of any tests and the raw data used in those tests.

Wis. Stat. § 980.036(2)(h) ("The results of any physical or

mental examination or any scientific or psychological test,

instrument, experiment, or comparison that the prosecuting

attorney intends to offer in evidence at the trial or

proceeding, and any raw data that were collected, used, or

considered in any manner as part of the examination, test,

instrument, experiment, or comparison."). If the legislature

intended an individual to receive raw data that could be used as

part of a test, it could have mirrored the language of

subsection (2)(h) in subsection (5). Instead, the legislature

did not use such language, indicating that it provided for the

discovery of only raw data that is intended to be introduced at

trial, not raw data that could then be part of an expert's

analysis, which may or may not be introduced.
¶52 Following a natural progression, the majority's

conclusion transforms chapter 980 discovery from extremely

limited, as the legislature devised, see Wis. Stat.

§ 980.036(11), to a fishing expedition——allowing an individual

to seek any data from the State that may assist the individual's

case. Certainly when the legislature limited discovery in

chapter 980 cases, it did not incidentally leave open this door.

¶53 I would apply the plain language that the legislature
chose——"intended to be introduced"——and conclude that Jendusa

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may not receive the DOC database under Wis. Stat. § 980.036(5)

because no party intended to introduce this raw data at trial.

III. CONCLUSION

¶54 To reach its conclusions, the majority ignores our

prior cases and the choice of the legislature. It carves out an

exception from a general rule that allows us to review the

decisions of the court of appeals. Moreover, it reads language

into the statute that the legislature did not include.

¶55 I conclude that the court of appeals must explain its

reasoning when it denies a party's motion for leave to file an

interlocutory appeal. I also conclude that the DOC's database

is not discoverable under Wis. Stat. § 980.036(5)'s plain

language. Accordingly, I respectfully dissent.

¶56 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK and Justice REBECCA GRASSL BRADLEY join this

dissent.

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1