Wisconsin Supreme Court’s “Decision” in Johnson

By Attorney Gregg Herman
July 5, 2013

The Wisconsin Supreme Court has done some strange things over the years, but its “decision” (there is a reason I put quotation marks around that word) in State v. Johnson, 832 NW 2d 609, 2013 WI 59, 348 Wis. 2d 450 (WI Supreme Court, 2013), this week is really weird.

Samuel Curtis Johnson, III, according the court of appeals decision in the case, is charged with one count of repeated sexual assault of his stepdaughter, T.S.  The assaults allegedly took place when T.S. was between twelve and fifteen years of age.  T.S. would have been seventeen years of age at the time of trial (the trial has been on hold during this interim appeal).  The prosecution of Johnson is premised upon statements made by T.S.  There appears to be no physical evidence of sexual assault.

Johnson asked the court to order an in camera inspection of T.S.’ therapy record, which he believed might contain exculpatory information.  The trial court granted the motion for an in camera review, which was affirmed by the court of appeals, although the appellate court found that it was bound by precedent, State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), to suppress the victim’s testimony if she refused to make her therapy records available.   The Supreme Court granted review.

The SC reached the following conclusions:

¶6   First, under varying rationales, a majority of the court concludes that in this case, the circuit court may not require production of the privately-held, privileged mental health records for in camera review.

¶7   Second, under varying rationales, a majority of the court concludes that the privilege-holder may testify in this case.

Here is the weird part of the “decision”:

¶8  Although there is a majority regarding each issue presented, we limit our writing because of the varied rationales.

Huh?  What gives?  “Varied rationales” are otherwise known as concurring and dissenting opinions.  Courts do that all the time.

The result is a “decision” which is about a page and half which gives orders in this particular case, but no guidance about an important issue which undoubtedly occurs with some frequency.

Why did the court dodge issuing opinions?  To avoid controversy?  Lazy?  A desire to save paper?

So far, no one has commented on this, but I hope someone asks these questions as I fail to understand why the court took this shortcut.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.