State v. Jendusa
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The Supreme Court affirmed the order of the court of appeals denying the State's petition for leave to file an interlocutory appeal of an order of the circuit court granting Defendant's discovery request, holding that the circuit court did not err in granting the request.
In 2016, the State filed a petition seeking to commit Defendant was a sexually violent person. The circuit court found probable cause to believe that Defendant was a sexually violent person and bound him over for trial. Thereafter, Defendant moved the circuit court to order the Wisconsin Department of Corrections (DOC) to disclose its database so he could have an expert analyze the Wisconsin-specific base rate. Defendant asserted that the DOC's Wisconsin-specific data provided a more relevant basis upon which to calculate his risk of engaging in future acts of sexual violence and that the database was discoverable. The circuit court ordered the DOC to transmit the full, unredacted database to Defendant. The court of appeals denied the State's petition for leave to appeal the non-final order. The Supreme Court affirmed, holding that the circuit court permissibly ordered the disclosure of the DOC database.
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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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: March 10, 2021 October 26, 2020 Circuit Milwaukee 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: FILED State of Wisconsin, 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 discovery of a FRANK DALLET, Wisconsin J. Department Anthony of Jendusa seeks 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). disagrees with Jendusa's applicability of Brady. interpretation of § 980.036 The State and the 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. All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated. 1 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). 2 2 No. I. ¶3 In December 2016, 2018AP2357-LV BACKGROUND 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 Jendusa met person.3 the employed statutory by the definition DOC, of a testified sexually that violent 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 Intervention and Progress Scale (SOTIPS)).4 Offender Treatment Dr. Tyre reported "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). 3 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 Static99R, 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." 4 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. of sex offenders recidivated.6 after Researchers observed several groups their release to see whether they 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. During 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. 5 For 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. 6 4 which studied Canadian and Danish offenders, No. 2018AP2357-LV 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. researchers "norms": To divided account the for groups this variability, into two "routine" and "high-risk/high-needs." the comparison 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 the then cross-references that risk category with 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 5 categories to the high- No. risk/high-needs norm's base rate, Dr. Tyre 2018AP2357-LV 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 additionally that Jendusa's considered score several of on the Jendusa's SOTIPS, which dynamic risk factors, indicated that Jendusa's absolute recidivism rate was likely slightly higher than that estimated by the Static-99 and Static-99R. factors, Dr. Tyre also acknowledged that certain mitigating such participation Jendusa's as in Jendusa's age sex-offender likelihood to (51 years programming, engage in future old) and slightly acts of his reduced 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. yet reviewed that email.7 2018AP2357-LV 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 found Based probable on Dr. Tyre's cause to evaluation, believe that the Jendusa circuit is a court 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 § 980.036(2)(h), Fourteenth Jendusa evidence——it (2)(j), Amendments argued base that either and to the rate (5), the to as well United database tends citing is show as States Wis. the does Fifth and Constitution. potentially he Stat. not exculpatory 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. Wisconsin-specific base rate, in turn, Application of a lower could result in a Nearly two years prior to the hearing, Dr. Tyre's coresearcher 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 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. database was exculpatory Jendusa also argued that the 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 first The State opposed disclosure on three grounds. argued that the database is not in the It State's "possession" because it is in the DOC's possession. Second, the State exculpatory argued that the database itself cannot be 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. or The State argued that therefore there is no statutory constitutional Finally, the requirement State claimed to that disclose the data Jendusa has an itself. adequate alternative remedy via a research request pursuant to the DOC's Executive Directive #36 ("Directive #36"), Research Requests Process and Procedure." "Human Subject 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 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 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, Directive #36, Jendusa but to no had requested avail. The the DOC's data under 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 analyst was Eventually, working the also with DOC revealed Dr. Tyre told that to Jendusa the identify that he lead research the database. 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 preliminary analysis.9 produce the database and the 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 open and The circuit court then ordered Dr. Tyre to "personally read the spreadsheet containing de-identified A subpoena duces tecum is a request that the witness produce not only himself or herself for live testimony but also certain physical evidence. 9 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." DOC's counsel but Dr. Tyre, again on the advice of the without objecting to the circuit court's order, did not bring the de-identified database to court. did, however, review preliminary analysis. the database and his He colleague's 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 "determine recidivism information." analyzing the data to The circuit court stayed its order pending resolution of the State's petition for leave to appeal that non-final order. State's petition, stating The court of appeals denied the only that the satisfy the criteria for permissive appeal." No. 2018AP2357-LV, unpublished order 2019). 10 (Wis. petition "fails to State v. Jendusa, Ct. App. July 16, No. ¶15 the We granted review of the court of appeals' denial of State's directed 2018AP2357-LV petition the for parties to interlocutory address the appeal and underlying further substantive issues related to the circuit court's discovery order.10 II. ¶16 court STANDARD OF REVIEW We review for an erroneous exercise of discretion the of appeals' denial interlocutory appeal. of the State's petition for 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 and We review de novo the circuit court's interpretation application of Wis. Stat. § 980.036 as ordering the disclosure of the DOC database. the basis for See Moreschi v. Vill. of Williams Bay, 2020 WI 95, ¶13, 395 Wis. 2d 55, 953 N.W.2d 318. III. ¶18 We begin by practice of typically ANALYSIS reaffirming not our reviewing longstanding the court of and sound appeals' We asked the parties to address whether the DOC database 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. 10 11 No. discretionary denial of a petition for 2018AP2357-LV 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. ¶19 Review of Interlocutory Appeal Denials 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 irreparable injury; or from substantial or (c) Clarify an issue of general importance in the administration of justice. The plain language of § 808.03(2) entrusts appeals discretion over interlocutory appeals. 12 to the court of As a matter of No. 2018AP2357-LV 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 undermine two the practice. purposes of Wis. Such Stat. a practice § 808.03: would "(1) to This 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. 11 13 No. protect the trial proceedings by avoiding 2018AP2357-LV 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 [§] 808.03(2)." N.W.2d 15 (1980). special circumstances set forth in Heaton v. Larsen, 97 Wis. 2d 379, 395–96, 294 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 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). 12 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. 14 No. ¶21 2018AP2357-LV 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, judicial review to facilitate. ¶47. there generally is no See Leavitt, 326 Wis. 2d 421, 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 reasons articulated by the court of appeals. to any 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 criteria, we erroneously the conclude exercise petition that its the did court discretion. not of satisfy appeals See those did Avery, not 345 Wis. 2d 407, ¶23. B. ¶23 We The Discoverability of the DOC Database 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 15 No. 2018AP2357-LV 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 meaning inquiry." We focus on the plain language of § 980.036. of the statute is plain, we ordinarily "If the stop the State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 16 No. WI 58, ¶45, omitted). 271 If Wis. 2d 633, 681 specially defined not N.W.2d 110 or 2018AP2357-LV (quoted technical, source 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." ¶25 Id., ¶46. 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 production," other second indicates criteria discretion to in clause, "the that the if subsec. (5), order its court may requested then the production. order the item meets the circuit court has because we That is 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 court evidence prescribes." circuit court requested item wide "under Read such together, discretion should be terms and these regarding produced but conditions clauses not also only the as the afford the whether manner a 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 17 No. the format that he requests it, is raw data. 2018AP2357-LV "Data," according to its dictionary definition,13 can mean "[f]actual information, especially information organized for analysis or used to reason or make decisions" suitable for or "information processing by represented computer." Data, in The a form 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." Heritage Dictionary, supra, at 1502. Raw, American 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 As it The DOC database fits the definition of "raw data." is unprocessed described in information, the record, such as the database individuals' contains names and "[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. 13 "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)). 14 18 No. birthdates, criminal histories, mental health scores on various actuarial assessments. 2018AP2357-LV diagnoses, and 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. Wis. 2d 612, 923 See State v. A.L., 2019 WI 20, ¶17, 385 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: it mean to intend to introduce raw data at trial? what does 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 data the ch. 980 context, raw 19 is data that informs an No. 2018AP2357-LV 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 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."). 15 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 . . . ."). 20 No. 2018AP2357-LV 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 subsec. (5), course, a in defendant's addition to request for satisfy the other rules of evidence. the raw conditions data also In particular, the raw data requested must be relevant to the case. § 904.02. must of See Wis. Stat. 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. likely not forthcoming given that the Such an analysis is 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. 21 No. ¶34 circuit Finally, court we cannot reject order the the State's State to 2018AP2357-LV argument turn that the the DOC over 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 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998). v. Darcy N.K., 218 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. employee, records, Dr. Tyre, declared violent person. employee's who him evaluated eligible Jendusa for and, commitment It was a DOC based as a on DOC sexually The circuit court relied upon that same DOC 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 Unlike 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. 16 22 No. Jendusa's Wis. Stat. ch. 980 proceeding, the 2018AP2357-LV 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 practice of introduce an analysis of that raw data at trial. IV. ¶36 We typically reaffirm not our reviewing CONCLUSION longstanding the court and of sound appeals' denial of a petition for interlocutory appeal. discretionary 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. we conclude circuit that, court pursuant permissibly to Wis. ordered the Stat. Lastly, § 980.036(5), disclosure of the 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. By the Court.—The order of the court of 2018AP2357-LV appeals is affirmed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion. 24 No. ¶37 ANNETTE KINGSLAND ZIEGLER, J. 2018AP2357-LV.akz (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 detrimentally impact affect our not only review this case, of the court of conclusions, the majority but will appeals in future cases. ¶38 To reach its prior cases and the choice of the legislature. exception from a general rule that decisions of the court of appeals. allows ignores our It carves out an us to review the 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. is not language. I. ¶40 discoverable I also conclude that the DOC's database under Wis. Stat. § 980.036(5)'s plain Accordingly, I respectfully dissent. THE COURT OF APPEALS MUST EXPLAIN ITS REASONING WHEN IT EXERCISES ITS DISCRETION. 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. 1 See Wis. Stat. No. § 808.03(2). 2018AP2357-LV.akz 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 litigation or clarify further proceedings in litigation; the the (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. Scott, 2018 WI 74, ¶¶35-41, 382 Wis. 2d 476, 914 State v. 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 proper governing the exercise of circuit court discretion is instructive in determining whether the court of appeals must explain the reasons underlying its discretionary decision-making." requirements we Id., ¶38. have placed Accordingly, we may look to the upon 2 the circuit courts and No. determine whether those requirements apply 2018AP2357-LV.akz to the court of appeals in the context of the denial of a motion for leave to file an interlocutory appeal. I conclude court exercises that those requirements do apply. ¶42 "When a circuit 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 N.W.2d 16 Hartung (1981)). v. Hartung, This 102 requirement Wis. 2d 58, ensures that 66, a 306 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 explanation on the judge would record, make. we Id., cannot ¶39. determine circuit court complied with this standard. Absent whether an the 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." ¶43 Id. We have previously applied this rationale to the court of appeals. require[d] See id., ¶¶40-41. the court of Although we found no case "that 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 No. of appeals." its Id., ¶40. discretionary 2018AP2357-LV.akz "The court of appeals should explain decision-making to ensure the soundness that decision-making and to facilitate judicial review." ¶44 of Id. 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 standard of review to the circuit court). understand whether a court of appeals' (applying the However, for us to or circuit court's decision can be supported by the facts, law, or rationality, we must have that court's explanation of its reasoning. 4 Without No. the reasoning, we have nothing to actually 2018AP2357-LV.akz 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." appeals However, when looking at the factors the court of must implicated. consider, at The here State least has one of them alleged that seems it to will be face "substantial or irreparable injury" if it is ordered to release the DOC database. Why? Presumably, the court of appeals disagreed. 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. then are we to determine whether erroneously exercised its discretion? ¶46 appeals appeals. review, the court of How appeals We cannot. Accordingly, the majority has now given the court of "unfettered See our decision-making" majority "general op., power ¶¶20-21. deference" to over Without the court interlocutory anything of transforms into total deference to the court of appeals. to appeals Rather For example, if a circuit court was to deny Jendusa's 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. 1 5 No. 2018AP2357-LV.akz 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 review the court of appeals. not explain its decision, our constitutional power to Because the court of appeals did it erroneously exercised its discretion.2 II. ¶47 THE DOC DATABASE CANNOT BE DISCOVERED UNDER WIS. STAT. § 980.036(5). 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 database plain language, Jendusa cannot obtain the DOC 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 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)). 2 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." ¶49 chapter Id., ¶46. The legislature has limited the scope of discovery in 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 that receive the DOC database, Jendusa must show it discoverable under one of the provisions of § 980.036. majority focuses its analysis on § 980.036(5).3 is The Section Because 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. 3 Wisconsin Stat. § 980.036(2)(h) prosecuting attorney must disclose: provides that [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. 7 the No. 2018AP2357-LV.akz 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 (Emphasis added.) some party requested. must and conditions as the court prescribes." This language is as clear as it could be—— intend to introduce at trial the raw data 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. ¶30. Majority op., 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 No. 2018AP2357-LV.akz 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. Wis. 2d 601, State 846 v. Matasek, N.W.2d 811 ("We 2014 should WI not 27, ¶20, 353 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 ¶30. to introduce However, this is the raw data itself. not what the statute Majority op., states. The statute states that only the "raw data that is intended to be introduced at the trial" is discoverable. Wis. Stat. more § 980.036(5). The majority's contention is even confusing considering an expert's analysis would be "evidence." As such, an expert's analysis discoverable under § 980.036(5). of raw data is already 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 9 or closely-related No. statutes . . . ."). 2018AP2357-LV.akz 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. mental § 980.036(2)(h) examination instrument, attorney considered any experiment, intends proceeding, or and in to or raw in as of or comparison data manner results scientific offer any any ("The that part were of physical psychological evidence that any the at instrument, experiment, or comparison."). test, prosecuting the collected, the or trial used, examination, or or test, If the legislature intended an individual to receive raw data that could be used as part of a test, it could have mirrored subsection (2)(h) in subsection (5). the language of 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 conclusion limited, a transforms as the natural chapter progression, 980 legislature the discovery devised, majority's from see extremely 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 10 No. 2018AP2357-LV.akz may not receive the DOC database under Wis. Stat. § 980.036(5) because no party intended to introduce this raw data at trial. III. ¶54 To reach its CONCLUSION conclusions, the majority prior cases and the choice of the legislature. exception from a general rule that decisions of the court of appeals. allows ignores our It carves out an us to review the 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. is not language. ¶56 discoverable I also conclude that the DOC's database under Wis. Stat. § 980.036(5)'s plain Accordingly, I respectfully dissent. I am authorized to state that Chief Justice PATIENCE DRAKE ROGGENSACK and Justice REBECCA GRASSL BRADLEY join this dissent. 11 No. 1 2018AP2357-LV.akz
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