State & T.A.J. v. Alan S. Johnson, 2019AP664-CR, District 4, 10/29/20 (recommended for publication); case activity (including briefs)

This is the first of what will likely be a series of appellate court decisions that re-make criminal litigation in light of “Marsy’s Law,” the recently-passed crime victims’ rights amendment to Article I, § 9m, of the Wisconsin constitution.

Johnson is charged with sexual assaulting T. He filed a motion under 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, seeking in camera review by the circuit court of T.’s health care records to determine whether the records should be released to the parties for possible use at trial. The prosecutor took no position regarding the defendant’s Shiffra-Green motion.

But T. did. He lawyered up and filed a pleading objecting to Johnson’s Shiffra-Green motion, arguing Johnson hadn’t met the standard for getting an in camera review. But Jessica J.L. v. State, 223 Wis. 2d 622, 589 N.W.2d 660 (Ct. App. 1998), held that an alleged victim doesn’t have standing to object to a defendant’s Shiffra-Green motion, and the circuit court concluded Jessica J.L. barred T. from objecting. T. filed a petition for leave to appeal, which the court of appeals granted. (¶¶2-6).

T.’s basic argument was that § 950.105, which grants victims standing to assert their rights, abrogated Jessica J.L. After briefing was complete the voters ratified Marsy’s Law (which the court of appeals refers to as “the 2020 constitutional amendment”), so the court of appeals asked for supplemental arguments. The court now holds that the changes made to Article I, § 9m abrogated the holding of Jessica J.L.:

¶25     The 2020 constitutional amendment grants crime victims rights using broad language. Pertinent here, the amendment subsections (2) and (2)(i) state that a victim has the right to be heard in any proceeding “during which a right of the victim is implicated,” and that these and other rights of the victim must be “protected by law in a manner no less vigorous than the protections afforded to the accused.” See Wis. Const. art. I, § 9m(2) and (2)(i). Paragraph (4)(a) states that a victim may “assert and seek” in circuit court rights delineated in the amendment and “any other right[s], privilege[s], or protection[s] afforded to the victim by law.” See id. art. I, § 9m(4)(a). It is undisputed that T. has rights to confidentiality and privilege regarding his health care records. See Wis. Stat. §§ 146.82(1) and 905.04(2).

¶26     From those provisions of Wisconsin law, it is manifest that:

  • T. has the right to be heard in a circuit court proceeding that implicates his rights or privileges;
  • T.’s right to be heard when his rights are implicated must be protected in a no less vigorous manner than is Johnson’s right to be heard when his rights or privileges are implicated; and
  • T.’s rights and privileges include the confidentiality and privilege regarding his health care records.

With those propositions in mind, the only reasonable conclusion that can be drawn is that the 2020 constitutional amendment grants T. standing to oppose Johnson’s Shiffra-Green motion for an in camera review of T.’s health care records.

¶27     Case law can be superseded by statute or constitutional amendment. See, e.g., State [ex rel. Hensley] v. Endicott, 2001 WI 105, ¶13, 245 Wis. 2d 607, 629 N.W.2d 686[,] and State [ex rel. Baade] v. Hayes, 2015 WI App 71, ¶8 n.3, 365 Wis. 2d 174, 870 N.W.2d 478 (both opinions recognize that a governing principle in a prior case was superseded by subsequently enacted legislation);… In view of our conclusion that the 2020 constitutional amendment grants T. standing to oppose, and make arguments objecting to, Johnson’s pending Shiffra-Green motion for an in camera review of T.’s confidential and privileged health care records, it then follows that the amendment abrogates Jessica J.L.

Johnson argues Marsy’s Law applies prospectively only, so it doesn’t give T. standing in his case, which was commenced before ratification. The court emphatically rejects this claim, and finds the legislature intended the amendment to apply to pending cases. (¶¶29-39). It cites the ratification campaign and the language of the constitutional amendment, in particular its provision that it is “self-executing,” Art. I, § 9m(3) (whatever that means), that the rights vest at the time of “victimization,” Art. I, § 9m(2)(intro.) (which we don’t know until the defendant has been convicted), and that the rights apply in various stages of proceedings that might not happen till long after the case is commenced (e.g., parole), Art. I, § 9m(2)(i):

¶38     We agree with the State that those provisions, read together, express the intent that the 2020 constitutional amendment applies to pending motions in cases initiated prior to passage of the amendment. The 2020 constitutional amendment’s delineation of rights of a victim to be heard in proceedings that may not occur for years after a case is initiated, such as sentencing, revocation, parole, and expungement hearings, together with a requirement that a circuit court must act “promptly” on a victim’s assertions of rights afforded to the victim under the amendment, are antithetical to the proposition that this amendment does not apply retrospectively to pending motions. Otherwise, for Johnson’s argument to succeed, we would effectively be required to read the following language into the 2020 constitutional amendment: “This amendment applies only to cases in which the crime was committed after May 4, 2020.” ….

So, the decision has at once a narrow and a broad impact. Because it is addressing only the effect of Marsy’s Law on the Shiffra-Green process, the decision’s impact on other aspects of criminal litigation is unclear; indeed, the state’s supplemental brief says the effect of Marsy’s Law beyond alleged victim standing on Shiffra-Green motions will be subject to case-by-case determination. Further, the decision does not (or should not) been seen as holding that complaining witnesses become a party to the criminal case—a specter Johnson raises, but which the court dispels based in part on T.’s own disclaiming of that status:

¶44     … Johnson argues that, if the 2020 constitutional amendment allows T. to address the circuit court regarding the Shiffra-Green motion, the amendment would permit T. to become a participant “in the prosecution of” Johnson. He concedes that “[v]ictims have the ability to assert rights provided under law,” but those rights cannot be asserted “in a manner that would afford him or her party status to join litigation associated with the prosecution of the defendant.” From that, Johnson asserts: “Shiffra-Green hearings are part of the prosecution and thus outside the constitutional or statutory rights of nonparty alleged victims.”

¶45     We agree that only a district attorney or a properly appointed special prosecutor can prosecute a criminal case. Wis. Stat. §§ 978.045 and 978.05(1). Consistent with this rule, T. disclaims in briefing in this court any intent to be involved in the prosecution of this matter. Moreover, the 2020 constitutional amendment does not purport to grant victims the ability to prosecute defendants. As Johnson concedes, “the recent amendments only provide a constitutionally based capability for a victim to seek to assert the enforcement of his or her rights specifically provided under law.”

¶46     Granting T. standing to oppose, and make arguments to the circuit court in the criminal case supporting his opposition to, a Shiffra-Green motion concerning his privileged and confidential health care records… does not impair Johnson’s rights because T.’s input to the circuit court on the merits of Johnson’s motion does not implicate hallmarks of substantive criminal law: (1) T.’s input does not prove that Johnson is guilty; (2) T.’s input does not create a new crime or change the elements of the crimes of which Johnson has been charged; or (3) T.’s input does not increase the sentencing range for those crimes. State v. Lagundoye, 2004 WI 4, ¶¶21-22, 268 Wis. 2d 77, 674 N.W.2d 526…. Granting T. standing in these circumstances allows T. only to contest Johnson’s Shiffra-Green motion by communicating his arguments to the court directly about why the motion should be denied or limited in a manner in the discretion of the circuit court.

All this may prove to be an ineffective incantation against the “party” specter. Other complaining witnesses could take a different view than T. does; nor do these “hallmarks” of substantive criminal law demarcate the only ways in which a defendant’s rights may be impaired; they don’t even seem particularly relevant to whether an alleged victim is effectively becoming a party.

Moreover, even apart from the “party” specter, the decision’s impact on Shiffra-Green litigation alone could be substantial, making those motions far more complex and time-consuming. And the fact that the decision holds the victim rights’ amendment applies retroactively to virtually all criminal cases where a court might be involved considerably broadens the class of cases to which its provisions could be applied.

Add it all up, and it means this is only the first word in Marsy’s Law litigation. Rest assured there will be many, many more.

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