author: ROGGENSACK, J. VERGERONT, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Calvin Gregory, Defendant-Appellant.

    Court of Appeals

      No. 00-0961-CR.

      Submitted on briefs December 7, 2000.

    Decided April 5, 2001.

    2001 WI App 107
    (Also reported in 630 N.W.2d 711.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Meredith J. Ross, Clinical Associate Professor, of the University of Wisconsin Law School of Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Chris R. Larsen, assistant attorney general.
    Before Vergeront, Roggensack and Deininger, JJ.

       Petition to review denied.

   ROGGENSACK, J.

¶ 1. Because the circuit court's finding that Calvin Gregory failed to prove the prosecutor's use of a peremptory strike to remove a juror was an act of purposeful racial discrimination is not clearly erroneous, we affirm the judgment.

BACKGROUND

¶ 2. Gregory was charged with possession of heroin with intent to deliver, within 1,000 feet of a school, as a repeater; the operation of a drug house, as a repeater; possession of cocaine, as a repeater; and felony bail jumping, as a repeater. After the jury was selected, but before its members were sworn, Gregory, who is African-American, challenged the prosecutor's use of a peremptory strike to remove the sole African-American juror, Dondre Eugene Bell. The circuit court immediately held a hearing on Gregory's challenge. Counsel for Gregory accused the prosecutor of using a peremptory challenge to remove all African-Americans from the jury, and the State gave its reasons for the strike. Thereafter, the circuit court found that Gregory had not proved the State's removal of Bell was racially motivated. The jury was recalled and sworn.

¶ 3. After a guilty verdict was returned to counts one and two and a not guilty verdict to count three, Gregory pled to bail jumping. Subsequent to sentencing, Gregory filed a notice of intent to pursue postconviction relief. One of his challenges, and the issue central to this appeal, is whether the circuit court erred in failing to grant his Batson challenge to the prosecutor's peremptory strike of the sole African-American juror. Gregory asked the court to schedule a postconviction evidentiary hearing so that he could cross-examine the prosecuting attorney and an assistant district attorney who also had used a peremptory strike to remove Bell in an earlier criminal case. The State argued that a Batson challenge must be decided solely upon the record developed in voir dire and on the responses given at the hearing held before the jury was sworn.

¶ 4. On hearing Gregory's postconviction motions, the circuit court agreed with the State and declined to hold a postconviction evidentiary hearing. Instead, it reviewed the record made during voir dire and the State's responses at the Batson hearing. It also allowed the parties to file written proffers of evidence showing what they would have sought to prove if an evidentiary hearing had been held. The circuit court reaffirmed its finding that Gregory had not made a successful Batson challenge, and this appeal followed.

DISCUSSION

Standard of Review.

¶ 5. We review the circuit court's finding of whether the prosecutor had the discriminatory intent necessary to support a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), as a finding of historic fact, which we will not overturn unless it is clearly erroneous. Hernandez v. New York, 500 U.S. 352, 369 (1991).

Batson Challenge.

¶ 6. It is a violation of a defendant's right to equal protection of the law for the State to use a peremptory challenge to remove a potential juror from the venire solely because of race. Batson, 476 U.S. at 84. A defendant's challenge to the State's use of peremptory strikes to deliberately remove jurors from the venire because of race was initially addressed by the United States Supreme Court in Swain v. Alabama, 380 U.S. 202 (1965), where the Court held that systematic exclusion violated African-American defendants' rights to equal protection of the law. Id. at 223. Batson expanded the holding of Swain because it concluded that an individual defendant is denied equal protection of the law when the State uses peremptory challenges to purposefully exclude potential jurors from the petit jury for that defendant solely because they are members of the same race as the defendant. Batson, 476 U.S. at 84.

¶ 7. Batson established that in order to make a successful challenge to the composition of a petit jury, a defendant must prove "purposeful discrimination." Id. at 93. In so doing, a defendant may rely on direct and circumstantial evidence of invidious intent, including proof of disproportionate impact. Id. In meeting this burden, a defendant first must make a prima facie showing that the State acted with discriminatory intent. To do so, a defendant should establish that he is a member "of a cognizable racial group" and that the prosecutor has exercised peremptory challenges to remove members of the defendant's race from the venire. Id. at 96. In making his case, a defendant is entitled to rely on the fact that peremptory challenges can be used as a jury selection practice to discriminate based on race, by those who intend to do so. Id. Some courts have created a bright-line rule whereby a defendant can make a prima facie case simply by showing that the prosecutor has used peremptory strikes to remove all members of the defendant's race from the jury, even if only one strike is required. Wisconsin has declined to adopt such a bright-line rule. State v. Walker, 154 Wis. 2d 158, 174 n.7, 453 N.W.2d 127, 133 n.7 (1990). "Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Batson, 476 U.S. at 96. This combination of factors raiseg the necessary inference of "purposeful discrimination." Id.

¶ 8. Once a defendant has made a prima facie case, then the burden shifts to the State to refute the inference of discriminatory intent. Id. at 97. The State's rebuttal does not need to be sufficient to justify a challenge for cause. Id. However, a prosecutor may not rebut a defendant's prima facie case simply by stating that he thought that because the juror and the defendant were of the same race, the juror would be sympathetic to the defendant's position. Id. Furthermore, a prosecutor may not rebut a defendant's prima facie case simply by denying that he had a discriminatory motive, but rather, the prosecutor "must articulate a neutral explanation related to the particular case to be tried." Id. at 98. If the State does so, then the circuit court has the duty to weigh the credibility of the testimony and determine whether purposeful discrimination has been established. Id. As part of this third step, a defendant may show that the reasons proffered by the State are pretexts for racial discrimination. Walker, 154 Wis. 2d at 176 n.11, 453 N.W.2d at 134 n.11.

¶ 9. At the hearing outside of the presence of the jury, and without ruling whether Gregory had made a prima facie case under Batson of purposeful discrimination, the court asked the prosecutor to explain why he struck Bell. The prosecutor said that he had several reasons: First, he had asked whether any juror had "police come to their residence for any type of complaint or to make an arrest or what have you." Bell responded, "They came to our office before to check out they had a burglary." He mentioned nothing about any police contacts at his residence. However, the prosecutor had received information from another assistant district attorney that police had responded to 1216 Wisconsin Avenue, Bell's residence, seventeen times between January 1996 and October 1998. Therefore, he said he believed that Bell was not being truthful in the answers he gave to the questions posed. Second, the prosecutor had also been told that one of those contacts involved a complaint of cocaine dealing, which information he found consistent with his recollection that Bell had said he had an uncle who had been "arrested for cocaine, some type of cocaine offense." Third, he was aware that a man named Christopher Bell had been arrested by federal agents in one of the largest cocaine dealing rings in Rock County, and he was concerned that Christopher Bell was the uncle that Bell had referred to during voir dire. And fourth, Bell lived close to the address where it was alleged that Gregory operated a drug house and therefore might be familiar with those who frequented it. Based on those concerns, the prosecutor concluded that the State's interests would be best served by striking Bell.

¶ 10. After hearing this explanation, counsel for Gregory said he could not refute the prosecutor's statements, as some of his reasons were not part of the record. However, he did not seek a brief adjournment to verify any of the prosecutor's factual assertions. Accordingly, without determining whether a prima facie case had been made in the first instance, the court found that based on the record before it, Gregory's Bat-son challenge must be denied because Gregory had not proved purposeful discrimination. Walker, 154 Wis. 2d at 156, 453 N.W.2d at 134.

¶ 11. In motions after verdict, Gregory resumed his Batson challenge and requested an evidentiary hearing, for which he made sizeable proffers of evidence which he argued showed: that Bell was unaware of all the police contacts at his residence; that Bell was unrelated to Christopher Bell; and that Bell had answered the questions during voir dire truthfully. The circuit court determined that an evidentiary hearing was unnecessary and that the Batson challenge had to be decided based on what the prosecutor believed when he struck Bell. We agree with the circuit court.

¶ 12. Batson requires that jurors not be struck because they are African-Americans. Batson, 476 U.S. at 84. It does not require that African-American defendants have African-American jurors. See Walker, 154 Wis. 2d at 174 n.7, 453 N.W.2d at 133 n.7. Here, the prosecutor listed numerous racially neutral reasons specifically related to Gregory's trial: (1) his concern about Bell's truthfulness in answering questions during voir dire, (2) family members who had some relationship to cocaine, a drug Gregory was accused of possessing, (3) close proximity to the alleged drug house, and (4) a concern that the uncle to whom Bell referred could have been recently arrested for significant involvement with drug trafficking. While it is true that the prosecutor did not verify much of the information on which he relied, there was no showing made by Gregory, either at the Batson hearing or at motions after verdict, that tends to prove those reasons were a pretext for racial discrimination.

¶ 13. Courts have routinely held that striking a juror because he or she lived in close proximity to some witness or evidence in the case to be tried is a race-neutral reason. United States v. Briscoe, 896 F.2d 1476, 1488-89 (7th Cir. 1990) (removal of an African-American venireperson who lived near two witnesses was race-neutral); United States v. Williams, 936 F.2d 1243, 1247 (11th Cir. 1991) (collecting cases upholding peremptory challenges based on geographical relationship between facts of the case to be tried and the venireperson). Courts also have upheld peremptory strikes based on a familial relationship to individuals involved in the criminal justice system. United States v. Johnson, 941 F.2d 1102, 1109 (10th Cir. 1991) (upholding strike of an African-American juror because family member was convicted of a crime and family history suggested disregard for the law); United States v. Bennett, 928 F.2d 1548, 1551 (11th Cir. 1991) (strike upheld due to prior family involvement with drug-related offenses). Accordingly, we conclude that the circuit court's finding that Gregory had failed to show that the prosecutor excluded Bell from the jury because both he and Gregory are African-Americans is not clearly erroneous.

¶ 14. Additionally, we also conclude that a post-conviction evidentiary hearing was properly denied because a circuit court's decision on a Batson challenge must be made before the jury is sworn. Furthermore, none of the proffers provided proof that was relevant to the prosecutor's intent when he struck Bell. For exam-pie, none of the documents showed the prosecutor had not been told what he represented to the court in the Batson hearing or that he knew any of the information he said he relied on was inaccurate. Instead, most of the materials focused on whether the information he was given was accurate. However, when attempting to prove the reasons given by the prosecutor were pretex-tual, the focus must be on what the prosecutor knew about the potential juror when he made the strike. Williams v. Chrans, 957 F.2d 487, 491 (7th Cir. 1992). Therefore, if a defendant is attempting to prove the prosecutor's reasons for the strike were pretextual, a defendant must show either that the prosecutor intentionally misrepresented the facts he said he relied on or that he had been told those facts but he knew they were erroneous. Stated another way, even if we were to assume, arguendo, that the prosecutor relied on inaccurate information, it does not necessarily follow that the prosecutor had the intent required to sustain a finding of purposeful discrimination. Here, what Gregory sought to prove by his proffers at the postconviction hearing was not relevant to the prosecutor's intent when he struck Bell. See State v. Toliver, 187 Wis. 2d 346, 358, 523 N.W.2d 113, 117 (Ct. App. 1994). And finally, if counsel for the defense réquired additional information in order to challenge the prosecutor's statements in the Batson hearing, he should have requested a brief adjournment at that time, fully explaining what he needed and why he needed it in order to complete the Batson hearing. No adjournment was requested here. Therefore, for all the reasons set forth above, we affirm the judgment of the circuit court.

CONCLUSION

¶ 15. Because the circuit court's finding that Gregory failed to prove the prosecutor's use of a peremptory strike to remove a juror was an act of purposeful racial discrimination is not clearly erroneous, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

VERGERONT, J.

¶ 16. (dissenting). I conclude that the trial court erred in its application of the Batson analysis. I do not agree with the majority that defense counsel waived the right to object to the prosecutor's proffered reasons for using a peremptory strike to remove Dondre Bell by not requesting an adjournment, nor do I agree that an evidentiary hearing is not required. Therefore, I would remand for an evidentiary hearing.

¶ 17. During voir dire, the prosecutor asked the potential jurors whether any had used a controlled substance such as marijuana, cocaine, or heroin. Seven answered they had used marijuana, ranging from twenty years ago to two years ago, and all seven said there was nothing about that fact that would make them unable to be a fair juror. The prosecutor then asked whether the family members of any potential jurors had used a controlled substance. Bell answered that his uncle had used cocaine approximately seven years ago; another potential juror answered that his brother used cocaine fourteen or fifteen years ago; and four answered that relatives had used marijuana between ten and twenty years ago. Five of these six persons, including Bell, said there was nothing about this that would make them unable to be a fair juror; one said she did not know if she could be fair and was excused for cause.

¶ 18. After asking whether any potential juror had been arrested for any reason (one had, not Bell), the prosecutor asked whether a close family member had been arrested for any type of criminal offense. Four potential jurors, not including Bell, answered in the affirmative. When the prosecutor asked whether the police had come to the residence of any other potential juror for "any type of complaint or to make an arrest or what have you?" Bell answered: "They came to our office before to check out they had a burglary," and he said he was satisfied with the way the police handled the complaint. Seven other potential jurors related visits to their homes by police officers for various reasons — noise complaints, a domestic dispute, vandalism to a juror's home, and burglary or theft of a juror's residence or possessions. Six of these seven potential jurors were satisfied with the police response; one was not but apparently indicated no to the question of whether anything about that incident would lead her to be unable to be fair.

¶ 19. Defense counsel began by asking the potential jurors if any lived near 1604 Wisconsin in Beloit. Bell answered yes and gave his address as "1200." In response to a follow-up question, Bell said that nothing about that fact would impact on his ability to be fair and impartial. Another potential juror explained that his family owned the property at 1604 Wisconsin Avenue, but sold it in 1993, and he had not been there since 1992, and that would not make it difficult for him to be fair and impartial.

¶ 20. After defense counsel completed his questions and the attorneys made their peremptory strikes, defense counsel made a motion that was heard in chambers. This is the record of that hearing:

[DEFENSE COUNSEL]: Your Honor, I believe that my client is entitled to a jury of his peers. There was one black person in the jury panel. [The prosecutor] struck that person. Under Batson, [the prosecutor] has to have a nondiscriminatory reason for having struck him, and I would request that he show cause as to why he did so.
THE COURT: Well, as I recall the juror's answers he said that the police had been to the premises on one occasion and he felt he was treated fairly and then he also responded that he lives on Wisconsin Avenue at an address not far from the premises that are the premises described in the information in this case. What's your reason for striking him, Mr. District Attorney?
[THE PROSECUTOR]: Your Honor, the court presided over the trial yesterday involving State versus Nancy Lamon where the State also struck Mr. Bell and Miss Dabson Bollendorf provided various reasons why Mr. Bell was struck by the State. And I would just reiterate those reasons as she relayed them to me prior to the jury selection. First of all, a record check of 1604 Wisconsin indicated that there had been numerous — strike that. A record check of Mr. Bell's residence indicated that there had been numerous police contacts at that residence. Clearly I believe Mr. Bell was not being truthful when he indicated that there was only one police contact at the residence and that was for a complaint of burglary. Miss Dabson Bollendorf also informed me that among the police contacts at Mr. Bell's residence included a complaint of cocaine dealing. And that is consistent with Mr. Bell's statement that his uncle had been arrested for cocaine, some type of cocaine offense. And given the fact that Mr. Bell's — given Mr. Bell's last name I have very strong reason to believe that the uncle that Mr. Bell referred to was Christopher Bell which was — who was arrested by the federal government in one of the largest cocaine dealing rings in Rock County. Given that, the fact that he does live close to the defendant's residence and as I indicated my belief that he was not being truthful in response to my questions regarding police contacts at the residence and prior arrests and convictions of family relatives, I believe I had more than an ample non-racial basis to strike Mr. Bell.
THE COURT: [Defense counsel]?
[DEFENSE COUNSEL]: Your Honor, I can't refute what [the prosecutor] is saying. A lot of what he's saying is beyond the record. I wasn't here yesterday. I have no idea what happened during the trial. I guess—
THE COURT: Well, that's the problem I have, [the prosecutor]. I have to do it on the record you make.
[THE PROSECUTOR]: And I am making the record based upon the information that Miss Dab-son Bollendorf informed me and as an officer of the court I believe I certainly can rely on her statements to me as to why she struck Mr. Bell and rely on that information as being reliable in making my determination as to whether or not to strike a juror.
THE COURT: And he did testify today that there had been an arrest made for cocaine violation at the premises when he was there, did he not?
[THE PROSECUTOR]: I believe that he testified that his uncle had been arrested for cocaine.
[DEFENSE COUNSEL]: I had not personally—
THE COURT: Not he but this had been an arrest made at the premises of his uncle. Well, I think that satisfies the law as it now exists, [defense counsel]. So I will deny your motion. You have exception. And I can give you no more.
[DEFENSE COUNSEL]: Thank you.
THE COURT: Okay.

¶ 21. Although the trial court did not rule that „ Gregory had made a prima facie showing that the State acted with discriminatory intent, it appears the court concluded Gregory had done so because it proceeded to the second step and asked the prosecutor to explain his peremptory strike. The State does not argue on appeal that we may affirm on the alternative ground that Gregory did not make a prima facie showing, and I take this to be a recognition that the record of the voir dire supports such a showing. Moreover, I conclude that the relevant circumstances as revealed on the record of the voir dire do raise an inference of discrimination, thus satisfying the test for a prima facie showing. State v. Walker, 154 Wis. 2d 158, 172-73, 453 N.W.2d 127 (1990). Although, as the majority points out, the striking of the only African-American juror does not automatically constitute a prima facie showing, id. at 174 n.7, that fact, together with the fact that none of Bell's answers made him a suitable candidate for exclusion or differentiated him in obvious ways from white jurors who were not struck does constitute a prima facie showing.

¶ 22. Considering next the trial court's ruling on the second step — whether the State met its burden to come forward with a race-neutral reason for the strike — it is evident that the trial court determined the prosecutor had met this burden. The difficulty here, however, is that what the trial court apparently considered as the race-neutral reason — that there had been an arrest of Bell's uncle for cocaine at his uncle's premises — was not what the prosecutor stated as his reasons and also was an incorrect statement of Bell's answer on voir dire. The prosecutor's stated reasons were based in large part on information he had from sources other than the voir dire, which led him to believe Bell was not being truthful and that his family members were more involved in cocaine than Bell had revealed. It appears the trial court may have thought it could not consider reasons that were not part of the record and therefore focused on what the court recalled as one of Bell's answers on voir dire — that "there had been an arrest for cocaine at the premises when he was there." However, this was not a correct statement of Bell's response on voir dire, and the prosecutor's correction of this statement also was not correct — the prosecutor's question to which Bell answered, "Uncle. Cocaine," was whether any family members had used a controlled substance. Bell did not respond, as did other potential jurors, when asked if close family members had been arrested, and he said nothing about the premises of his uncle.

¶ 23. We defer to the trial court's determination at each of the three Batson steps, reversing only if the determination is clearly erroneous. State v. King, 215 Wis. 2d 295, 301, 572 N.W.2d 530 (Ct. App. 1997). Both because the trial court did not rule on the reasons the prosecutor gave and because it attributed to Bell a statement he did not make in voir dire, I cannot affirm the trial court's ruling at the second step.

¶ 24. Turning to the third step, it appears the trial court did not distinguish between the second and third steps of the Batson analysis. Rather, it appears that, having determined the State had met its burden on the second step, the court immediately denied the motion, implicitly deciding Gregory had not met his burden of establishing purposeful discrimination — for example, by showing that the prosecutor's explanation was a pretext. See Walker, 154 Wis. 2d at 176 n.11. However, the third step in the Batson analysis is not satisfied by a conclusory statement that the prosecutor's explanation is race-neutral. Jordan v. Lefevre, 206 F.3d 196, 200 (2nd Cir. 2000). At the third step, the trial court has the duty to determine if the defendant has established purposeful discrimination. Batson v. Kentucky, 476 U.S. 79, 98 (1986). The duty of assessing the credibility of the prosecutor's race-neutral reasons embodies the "decisive question" in the Batson analysis, Hernandez v. New York, 500 U.S. 352, 365 (1991), and requires the trial court to consider all the facts and circumstances. Jordan, 206 F.3d at 200.

¶ 25. In this case the prosecutor's explanation for the challenged strike was based on information about Bell beyond that produced in voir dire. I conclude the prosecutor may rely on information that is not produced in voir dire, and, when that occurs, the trial court should decide at the second step whether that explanation is race-neutral. If the trial court decides that it is, I conclude that at the third step the defendant is entitled to challenge that explanation as a pretext, and must have the opportunity to explore the information that the prosecutor has provided as the basis for the strike. The rationale for applying the deferential standard to trial court rulings on Batson challenges is that the determination of discriminatory intent is largely formed by the trial court's perceptions at voir dire. State v. Lopez, 173 Wis. 2d 724, 729, 496 N.W.2d 617 (Ct. App. 1992). When the prosecutor states that he or she is relying on police reports, arrest or conviction records, or other information not produced by responses in voir dire, I do not see how the trial court can fulfill its duty at the third step to assess the credibility of that prosecutor without evaluating the information on which he or she is relying. Because the trial court did not engage in the analysis required at the third step, I cannot agree we should affirm the determination that Gregory did not establish purposeful discrimination.

¶ 26. I also do not agree with the majority that affirmance is appropriate because defense counsel did not request an adjournment in order to obtain the additional information that the prosecutor stated was the basis for the strike. Defense counsel did, immediately after hearing the prosecutor's explanation, state that it was based on matters not of record. Defense counsel may have intended to ask for an adjournment when the trial court interrupted to say to the prosecutor "I have to do it on the record you make." When the trial court then focused on what it believed Bell said in voir dire, defense counsel's response was again interrupted by the court in a manner conveying the court did not wish further argument. Moreover, the court did not separately consider the third step in the Batson analysis, which is the point at which a request for an adjournment to obtain and review the "outside" information would be appropriate.

¶ 27. When a trial court has not engaged in the required analysis in response to a Batson challenge and the record does not permit review by this court as a matter of law, the proper remedy is a remand to allow that to occur. See, e.g., Jordan, 206 F.3d at 201—02; State v. Donaghy, 769 A.2d 10 (Vt. 2000). In my view, at the postconviction hearing the trial court adequately addressed the prosecutor's stated reasons for the strike (that is, the information he was relying on that was not produced at voir dire) and determined they were race-neutral, and I conclude that determination is not clearly erroneous. Therefore, there is no need for a remand to address the second step.

¶ 28. However, I do not agree with the majority that the offer of proof made at the postconviction hearing shows no evidence relevant to the third step. I do agree that the focus in proving that the reasons given by the prosecutor are pretextual is on what the prosecutor knew about the potential juror when he or she made the strike; therefore, the accuracy of what the prosecutor knew is not necessarily relevant. Because I am writing in dissent, I do not analyze in detail what evidence Gregory would be allowed to present at an evidentiary hearing. However, I am persuaded that at least some of the material submitted by way of offer of proof is relevant to the prosecutor's intent.

¶ 29. For example, the reports of visits by law enforcement personnel to 1216 Wisconsin Avenue, upon which the prosecutor apparently relied, do not indicate Dondre Bell lived at the address when the visits occurred, was involved in any of the incidents, or knew about them. Nonetheless, the prosecutor, according to his statement to the trial court, assumed Bell was not being truthful because he did not disclose more contact with the police by family members. If the prosecutor had no information indicating Bell lived at 1216 Wisconsin Avenue at the time of the police visits or knew of those visits, the prosecutor's statement to the court that Bell was not being truthful might simply be based on an unfounded assumption that Bell knew of the incidents, but it could also be evidence of pretext.

¶ 30. Were I writing for the majority, I would remand to allow the trial court to conduct a hearing at which Gregory would have the opportunity to establish that the prosecutor's stated reasons were a pretext for purposeful discrimination based on race and the trial court could then engage in the analysis required at the third Batson step. If the court determined that there were no purposeful discrimination based on race, it would affirm Gregory's conviction. If it determined that there were purposeful discrimination, the required remedy would be a reversal of the conviction and a new trial. King, 215 Wis. 2d at 309.

      The circuit court denied Gregory's challenge by simply saying, "So I will deny your motion." Because the circuit court was required to find the prosecutor had discriminatory intent in order to grant the motion, Hernandez v. New York, 500 U.S. 352, 369 (1991), we conclude that its denial of the motion demonstrated that it did not find the requisite discriminatory intent. Additionally, the court clarified in the hearing on Gregory's postconviction motions that it had found the prosecutor's explanation at the initial hearing race-neutral.

         Batson v. Kentucky, 476 U.S. 79 (1986).

       The proffers are part of the record on appeal, and we have reviewed them.

       Much earlier, the Supreme Court had held that the State denies African-American defendants equal protection of the law when African-Americans are purposefully excluded from jury service. Strauder v. West Virginia, 100 U.S. 303, 306-07 (1880).

        United, States v. Chalan, 812 F.2d 1302 (10th Cir. 1987); Stanley v. State, 542 A.2d 1267 (Md. 1988); Pearson v. State, 514 So. 2d 374 (Fla. Dist. Ct. App. 1987).

       Contrary to the assumption of the dissent, we do not assume that the circuit court had found Gregory had made a prima facie case.

       Actually, Bell said he had an uncle who had used cocaine. Gregory makes much of this error in his brief, but he did not raise it during the Batson hearing before the jury was sworn. Therefore, we conclude it is not significant for this appeal. See State v. Waites, 158 Wis. 2d 376, 380, 462 N.W.2d 206, 207 (1990).

       Contrary to Gregory's argument on appeal, the prosecutor did not say that he struck Bell because of the neighborhood in which he resided. Therefore, the concern addressed in United States v. Briscoe, 896 F.2d 1476, 1488 (7th Cir. 1990), that striking a juror based on his neighborhood could be a pretext for striking the juror based on his race, is not present here.

       Since the prosecutor asked "has anyone ever had the police come to their residence for any type of complaint or to make an arrest or what have you?" we are uncertain whether Bell answered "office" or whether this is an error in transcription.

       The transcript of the voir dire states "1200," but it appears from other documents on the record that Dondre Bell lived at 1216 Wisconsin Avenue on the date of the voir dire, April 16, 1999.

       The police visits occurred during 1996-98. The reasons on the report for the visits are for things such as service of process and investigation of a claim by a household member of burglary, theft or neighbor dispute. The only reference to drugs is on January 11,1996, when a resident at that address reported that certain items were missing and the responding officer makes this comment: "Bell believes husband sold property for drugs ...."


source: Caselaw Access Project

author: ROGGENSACK, J.

license: Public Domain

text:
    Jane Barry, Plaintiff-Appellant, v. Maple Bluff Country Club, Inc., Defendant-Respondent.
    Court of Appeals

      No. 00-1178.

      Submitted on briefs November 7, 2000.

    Decided April 5, 2001.

    2001 WI App 108
    (Also reported in 629 N.W.2d 24.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Aaron N. Halstead of Shneidman, Myers, Dowling, Blumenfield, Hawks & Domer of Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael G. Laskis and Emily R. Gnam oí Foley & Lardner of Madison.
    Before Vergeront, Roggensack and Deininger, JJ.

      Petition to review deified.

   ROGGENSACK, J.

¶ 1. Jane Barry appeals a judgment dismissing her complaint alleging sexual discrimination by Maple Bluff Country Club. Because we conclude that the Club is a private, nonprofit organization that satisfies the requisite criteria of ch. 106 to fall outside the scope of Wisconsin's public accommodation law, we affirm the judgment of the circuit court.

BACKGROUND

¶ 2. Maple Bluff Country Club is a nonprofit organization that provides its members and guests with a clubhouse, pool, tennis courts, golf course, and other recreational facilities. It does so on land that it leases from the Village of Maple Bluff. According to the terms of the lease, the Village retains certain rights of use during limited times which the Club establishes. The Club also makes specified cash payments to the Village and must pay taxes, insurance, upkeep and any other expense relating to maintaining its facilities on the Village's property.

¶ 3. Barry is a member of the Club and a resident of the Village. She has alleged that the Club engaged in sex discrimination by providing more advantageous services and opportunities to men than to women club members. Her amended complaint made a number of legal contentions, all of which we dismissed in an earlier decision, Barry v. Maple Bluff Country Club, 221 Wis. 2d 707, 586 N.W.2d 182 (Ct. App. 1998) (hereinafter, Barry I), except her claim for unlawful discrimination under Wisconsin's public accommodation law, Wis. Stat. § 106.04(9)(a)2. (1997-98). We allowed that claim to proceed because the record presented during the first appeal was insufficient to determine whether the Club was a public or a private organization operated in a manner consistent with the statutory proviso. Barry I at 722-26, 586 N.W.2d at 188-89.

¶ 4. On remand, a further record was developed. The circuit court thoroughly analyzed Wis. Stat. § 106.04(1m)(p), which defines "public place of accommodation or amusement" broadly and then establishes additional criteria, which, if met, limit the statute's application. The circuit court concluded that the Club had met its burden of proving that it fell within the proviso of § 106.04(1m)(p)2. and therefore, was not subject to the proscriptions contained in § 106.04(9)(a)2. Barry appeals.

DISCUSSION

Standard of Review.

¶ 5. This court applies the same summary judgment methodology as the circuit court. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. Id. If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. at 233, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute that entitle the opposing party to a trial. Id.

¶ 6. Both parties moved for summary judgment. The facts material to each party's motion are not disputed; only the application of those facts to the various factors necessary to establish whether the Club falls within the ambit of Wisconsin's public accommodation law is contested. Therefore, the question before us is one of statutory interpretation, or the application of a statute to undisputed facts, which we decide de novo. Id. at 233, 568 N.W.2d at 34.

Statutory Interpretation.

¶ 7. Barry claims that the Club's activities are prohibited by Wis. Stat. § 106.04(9)(a)2., which states that no person may:

Give preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry.

The parties agree that the Club must be a public place of accommodation or amusement for Barry's claim of discrimination to lie under § 106.04(9)(a)2. Section 106.04(lm)(p) defines "public place of accommodation or amusement." It states in relevant part:

1. "Public place of accommodation or amusement" shall be interpreted broadly to include, but not be limited to . . . any place where accommodations, amusement, goods or services are available either free or for a consideration, subject to subd. 2.
2. "Public place of accommodation or amusement" does not include a place where a bona fide private, non-profit organization or institution provides accommodations, amusement, goods or services during an event in which the organization . . . provides the accommodations, amusement, goods or services to the following individuals only:
a. Members of the organization or institution.
b. Guests named by members of the organization or institution.
c. Guests named by the organization or institution.

¶ 8. Rather than addressing the merits of Barry's claim of discrimination under Wis. Stat. § 106.04(9)(a)2., the proceedings in the circuit court focused on whether the Club was a bona fide private organization that provided goods or services only to the three classes of individuals described in § 106.04(1m)(p)2. The circuit court dismissed Barry's complaint because it concluded that the Club was a private organization that operated within the confines of § 106.04(1m)(p)2.

¶ 9. No published Wisconsin appellate case has addressed the definition of "public place of accommodation or amusement" as applied to an operating country club. We conclude a two-fold analysis is appropriate: First, we must determine whether the Club is a private organization, and second, we must determine whether it provides accommodations, amusement, goods or services only to those classes of individuals described in Wis. Stat. § 106.04(1m)(p)2.a.-c.

1. Private organization.

¶ 10. Although Wisconsin appellate courts have not examined the term "private" in light of Wis. Stat. § 106.04(lm)(p), federal cases have construed the federal public accommodation law, which also has status as a "private" club as one criterion necessary to avoid the effect of the law. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); Equal Employment Opportunity Comm'n v. Chicago Club, 86 F.3d 1423 (7th Cir. 1996); Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th Cir. 1993); United States v. Lansdowne Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989). The usual analysis focuses on the eight factors drawn together in Lans-downe Swim Club: (1) the genuine selectivity of members for the organization; (2) the organization's control over its operations; (3) the history of the organization; (4) the use of the organization's facilities by nonmembers; (5) the organization's purpose; (6) whether the organization advertises for members; (7) whether the organization maintains a nonprofit status; and (8) the formalities observed by the organization. Lansdowne Swim Club, 713 F. Supp. at 796-97; Welsh, 993 F.2d at 1276. In reviewing the eight factors listed, courts have placed the greatest weight on the first factor, whether membership in the organization is truly selective. Welsh, 993 F.2d at 1276 (citing Tillman v. Wheaton-Haven Rec. Ass'n, 410 U.S. 431 (1973)). Federal courts have concluded that a truly selective membership requires a "plan or purpose of exclusiveness." Sullivan, 396 U.S. at 236.

¶ 11. As we apply Wisconsin's public accommodation law to the facts stipulated to by the parties, we do so in a manner consistent with the purpose of the legislation. J.L.W. v. Waukesha County, 143 Wis. 2d 126, 130, 420 N.W.2d 398, 400 (Ct. App. 1988). The legislative purpose underlying Wis. Stat. § 106.04(1m)(p)l. is to broadly define those organizations subject to the law but, under subp. 2., to remove certain organizations from the scope of the statute if they are bona fide nonprofit, private organizations providing accommodations, amusement, goods or services to certain classes of recipients. Barry I, 221 Wis. 2d at 722-23, 586 N.W.2d at 188. In interpreting the term "private" consistent with that statutory purpose, we conclude the criteria established under federal law are of assistance to our analysis, as is the circuit court's well-reasoned decision.

¶ 12. The stipulation of facts shows the Club has a plan that is consistently employed in determining who will obtain membership. First, a prospective member must be proposed and seconded by two members who must vouch for the nominee's moral and financial character. If the prospective member is not a village resident, two letters must be sent to the membership committee supporting the nomination. If the nominee resides in the Village, the Club requires one letter. Second, the membership committee interviews all nominees and makes recommendations to the Club's board of directors. Third, no one may be admitted to membership except through the unanimous vote of the board. The only restriction on the board's decision-making process is that no nominee may be rejected on the basis of race, creed, sex or national origin.

¶ 13. The stipulation of facts also shows that the Club meets other criteria for a private club. For example, the membership owns the Club's property and, through its board which is elected by the membership, it decides what programs and facilities will be provided and the hours of use. The board's control of the Club's facilities is an important factor. Chicago Club, 86 F.3d at 1435-36. In regard to residents of the Village who may make limited use of certain club facilities according to the terms of the lease, the lease was entered into by the board, and the times for such use are set by the Club and described in its various publications. Furthermore, the history of the Club shows its purpose has always been that of a private country club established to provide social and recreational services and facilitieá to its members and guests.

¶ 14. We are not persuaded by Barry's argument that the lease's requirement that village residents receive a letter inviting them to apply for membership and that a majority of the board must be residents in the Village causes the Club to be a public organization. As we stated earlier, village residents are not guaranteed membership and can be rejected simply by failing to receive a unanimous vote from the board. Additionally, Barry has cited no authority that would prohibit a private club from having as one criterion for membership, or a director's position, residence in a particular geographic location for a percentage of its members or directors, and we have found none. Accordingly, we conclude that the Club is a private organization within the meaning of Wisconsin's public accommodation law.

¶ 15. Barry focuses her arguments most heavily on the provisions of the lease that permit nonmember residents of the Village to use club facilities at prescribed times. We conclude that these provisions are insufficient to overcome the other criteria which clearly show the intent and plan utilized to maintain a truly selective membership and operation of the Club as a private organization. However, that argument does require further examination as we determine whether the Club's activities come within the proviso of Wis. Stat. § 106.04(1m)(p)2.a.-c.

2. Recipients of goods or services.

¶ 16. All of the provisions Barry relies on come from the lease between the Club and the Village. The lease evidences a series of business transactions between the Club and the Village where payments by the Club for use of the land are made in cash and in kind. The use that nonmember residents make of the facility is limited to: use of the tennis courts for three hours per week between June 7 and Labor Day; use of the swimming pool three daytime hours and three evening hours per week, but no guests are permitted; use of the golf course three times per year upon payment of green fees and at hours of play specified by the Club; children's participation in swim team, tennis team and golf lessons upon payment of any required fee; and use of the Grill Room Sunday afternoon and evening from November through March if it is open. The Club monitors this use through provision of a "resident privilege card."

¶ 17. For these activities to be permissible under Wis. Stat. § 106.04(1m)(p)2.a.-c., the nonmember residents must be "guests named by members" of the Club or "guests named by" the Club. We conclude they are guests named by the Club. While it is true, as Barry contends, that each nonmember village resident is not described by name, each does receive an individual resident privilege card. Additionally, the statute does not require that each guest be individually named. The bylaws, rules of the Club and resident privilege card identify those guests with sufficient specificity to monitor their use and exclude the general public while honoring the payments in kind for which the Club is obligated under the lease.

¶ 18. Accordingly, we conclude that the Club is not an organization within the scope of Wisconsin's public accommodation law because it is a bona fide private, nonprofit organization which provides accommodations, amusement, goods or services only to its members, guests of its members and guests of the Club. Therefore, we affirm the judgment of the circuit court.

CONCLUSION

¶ 19. Because we conclude that the Club is a private, nonprofit organization that satisfies the requisite criteria of ch. 106 to fall outside the scope of Wisconsin's public accommodation law, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

      The facts referenced in this opinion were provided by stipulation submitted to the circuit court.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. Wis. Stat. § 106.04(9) (a)2. has been renumbered by 1999 Act 82 §§ 38 to 92. Now § 106.52(3)(a)2. (1999-2000).

       We determined that the section of the statute that the Club seeks to use as a legal basis for dismissing Barry's lawsuit is a proviso on which the Club bears the burden of proof. Barry v. Maple Bluff Country Club, 221 Wis. 2d 707, 723, 586 N.W.2d 182, 188 (Ct. App. 1998).

       Renumbered by 1999 Act 82 §§ 38 to 92. Now Wis. Stat. § 106.52(1)(e) (1999-2000).

       It is not disputed that the Club is a nonprofit organization.

       The lease specifically states that it has no third-party beneficiaries.

       Currently, the Grill Room is closed on Sundays January through March.


author: NETTESHEIM, J.

text:
    Roslyn L. Braverman, Plaintiff-Appellant, v. Columbia Hospital, Inc., OHIC Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Respondents, Clay J. Frank, M.D. and Physicians Insurance Company of Wisconsin, Defendants.
    Court of Appeals

      No. 00-0901.

      Oral argument February 27, 2001.
    Decided April 11, 2001.

    2001 WI App 106
    (Also reported in 629 N.W.2d 66.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert L. Jaskulski of Domnitz, Mawicke & Goisman, S.C. of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Lori Gendelman, Paul J. Pytlik and Brett D. Stacey of Otjen, Van Ert, Lieb & Weir, S.C. of Milwaukee.
    Before Brown, P.J., Nettesheim and Anderson, JJ.
   NETTESHEIM, J.

¶ 1. This is a medical malpractice case commenced by Roslyn L. Braverman against Columbia Hospital, Inc., its liability insurer and the Wisconsin Patients Compensation Fund (collectively, Columbia). We previously granted Braverman's petition for leave to appeal a nonfinal protective order barring Braverman from discovering certain records relating to Columbia's quality assurance procedures. The trial court issued the protective order pursuant to Wis. Stat. § 146.38(2) (1999-2000) which bars the release of the record of a review or evaluation conducted under a health care provider's quality assurance program.

¶ 2. Braverman raises three issues on appeal. First, she contends that her discovery request for Columbia's statistical data on its infection rates is not barred by Wis. Stat. § 146.38. Second, she contends that a report issued by the Wisconsin Department of Health and Family Services (Department) in conjunction with Columbia's quality assurance review is not barred by the statute. Third, she contends that the trial court erred by refusing to conduct an in camera review of the materials she sought by discovery. We agree with Braverman's first argument. We hold that Columbia's statistical data of infection rates is subject to discovery. We reverse that portion of the protective order. We reject the balance of Braverman's arguments and affirm the balance of the protective order. We remand for further proceedings.

FACTS

¶ 3. The facts of this case are not in dispute. We take them from Braverman's original and amended complaints and from the various affidavits filed by Columbia in support of its motion for a protective order.

¶ 4. On February 23, 1998, Braverman underwent surgery at Columbia Hospital for cervical spinal stenosis and left upper extremities polyradiculopathy. Subsequently, Braverman was diagnosed with a nosocomial infection. She was rehospitalized from March 6 through March 16, 1998, and again from March 31 through April 7, 1998, for treatment of the infection.

¶ 5. As mandated by Wis. Admin. Code § HFS 124.08, Columbia maintains an Infection Control Committee (ICC). Its purpose is to influence and improve the quality of health care through the practice of infection control. The ICC recommends practices to reduce risk of infection to patients, visitors and health care workers. The ICC membership includes officers and members of the various departments within the hospital who meet on a monthly basis and are governed by a set of rules. Columbia's Hospital Infection Control Practitioners compile infection statistics. The ICC conducts an investigation or study of any postoperative infection for purposes of quality assurance. The ICC coordinates its infection control processes in compliance with the by-laws and rules of the medical staff in order to reduce the risk of hospital acquired infections in patients, visitors ;and health care workers.

¶ 6. Columbia's various medical departments have Medical Staff Committees. A subset of these committees is the Medical Council, which is also denominated the Quality Assessment and Quality Improvement Committee. All of Columbia's medical staff departments report their quality assessment agenda deliberations to the Medical Council, which, in turn, makes recommendations and acts upon those deliberations.

¶ 7. On October 31, 1996, Judy Hintzman, Columbia's Infection Control Coordinator, requested Mary Proctor, a supervisor of the Communicable Disease Epidemiology Unit for the State of Wisconsin, Department of Health and Family Services, to review and evaluate Columbia's services for purposes of quality assurance. Proctor's ensuing report states that Hintzman's request was prompted by "[a] preliminary report investigating an increase in nosocomial infections following open heart surgery at Columbia Hospital [between] July 1 and October 29,1996 ...."

PROCEDURAL HISTORY

¶ 8. Braverman's original complaint alleged that Columbia was negligent in its treatment of her. Her second amended complaint added a claim that Columbia had failed to adequately inform Braverman under the law of informed consent. Columbia answered, denying the allegations.

¶ 9. Braverman followed with a series of interrogatories and document requests. Columbia objected on the grounds that some of the information sought by Braverman was a record of its review and evaluation procedures under WlS. Stat. § 146.38 and therefore was privileged pursuant to subsecs, (lm) and (2) of the statute. In its written decision, the trial court categorized the disputed material as follows: "(1) infection control materials, including meeting minutes, infection rates, and the results of any investigations conducted by quality assurance/peer review committees; (2) reports and/or evaluations of the Joint Commission on Hospital Accreditation; and (3) information derived from a quality assurance investigation conducted in association with the Wisconsin Department of Health." Applying the court of appeals decisions in State ex rel. Good Samaritan v. Moroney, 123 Wis. 2d 89, 365 N.W.2d 887 (Ct. App. 1985), Franzen v. Children's Hospital, 169 Wis. 2d 366, 485 N.W.2d 603 (Ct. App. 1992), and Mallon v. Campbell, 178 Wis. 2d 278, 504 N.W.2d 357 (Ct. App. 1993), the court ruled that all three categories of materials were privileged.

¶ 10. Braverman appeals. We will discuss the trial court's ruling in greater detail as we discuss the various issues.

STANDARD OF REVIEW AND GENERAL PRINCIPLES OF PRIVILEGE LAW

¶ 11. Generally, discovery disputes are addressed to the trial court's discretion. Franzen, 169 Wis. 2d at 376. We will uphold a discretionary decision if the trial court applied the relevant law to facts of record using a process of logical reasoning. Id. When the trial court's discretionary ruling is based on an error of law, the court has erred in the exercise of its discretion. Id.

¶ 12. However, in this case, the ultimate issue is the meaning of Wis. Stat. § 146.38 as applied to the undisputed facts. That exercise presents a question of law which we review de novo. Briggs v. Farmers Ins. Exch., 2000 WI App 40, ¶ 14, 233 Wis. 2d 163, 607 N.W.2d 670, review denied, 234 Wis. 2d 178, 612 N.W.2d 734 (Wis. Apr. 26, 2000) (No. 99-1123). Despite our de novo standard, we value a trial court's decision on the question. Scheunemann v. West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993). Here, although we disagree with one portion of the trial court's ruling, the court has nonetheless provided us with a helpful and thorough decision on the issues.

¶ 13. A party asserting a privilege carries the burden to establish the privilege. Franzen, 169 Wis. 2d at 386. We narrowly interpret privileges created by statute. Id. When determining whether a privilege exists, we inquire into the existence of the relationship upon which the privilege is based and the nature of the information sought. Id. The determination of privilege is one for the courts, not for the professionals involved. Id.

WIS. STAT. § 146.38 AND THE CASE LAW

¶ 14. We set out the relevant portions of Wis. Stat. § 146.38 in the accompanying footnote. The purpose of the privilege created by § 146.38 is "to protect the confidentiality of the peer review process, in the hope that confidentiality would encourage free and open discussion, among physicians knowledgeable in an area, of the quality of treatment rendered by other physicians." Moroney, 123 Wis. 2d at 98. The review contemplated by the statute is intended to aid physicians on the hospital staff in maintaining and improving the quality of their work, and the review lies at the core of the protection afforded by the statute. Id.

¶ 15. In Mallon, the court of appeals held that quality assurance records are privileged under Wis. Stat. § 146.38 if two elements are satisfied. Mallon, 178 Wis. 2d at 287. First, the investigation must be part of a program organized and operated to improve the quality of health care at the hospital. Id. Second, the organization contemplated by the statute is a group with relatively constant membership, officers, a purpose and a set of regulations. Id.

¶ 16. In Franzen, the court of appeals further analyzed Wis. Stat. § 146.38, and set out a methodology for trial courts to follow when addressing a privilege question under § 146.38. The court addressed the three distinct categories of materials created by the statute and whether the privilege applied to each:

We first note that the plain language of this section creates three distinct categories of materials: (1) a "record of [ ] investigations, inquiries, proceedings and conclusions," (2) "information, documents or records presented during the review," and (3) "matters within [a person's] knowledge." Materials in the first category are expressly protected from the discovery process. Materials in the second category are not protected by this subsection. Materials in the third categories are expressly made available in "any civil action."

Franzen, 169 Wis. 2d at 377-78 (footnote omitted).

¶ 17. Franzen took particular note that WlS. Stat. § 146.38(2) recognizes two distinct kinds of records: (1) records of the investigations, inquiries, proceedings and conclusions; and (2) records presented during the review or evaluation. Franzen, 169 Wis. 2d at 378-80. Since the former are privileged whereas the latter are not, Franzen held that a trial court must distinguish between the two. Id. at 381. The trial court performs this task by making three distinct findings of fact:

(1) identify those individuals preparing a record in order to determine if they are either evaluators or members of an organization "reviewing or evaluating services,"
(2) determine if a record pertains to an investigation, inquiry, proceeding or conclusion of the evaluator or organization identified in step one,
(3) determine if a record was presented to the evaluator/organization or was kept by the evaluator/organization.

Id. at 381-82 (footnote omitted).

¶ 18. In this case, the trial court applied the Motion and Franzen tests to the three categories of disputed materials. We do not read Braverman's appellate briefs or her presentation at oral argument to quarrel with the trial court's application of the Motion and Franzen tests, assuming that Wis. Stat. § 146.38(2) applies. Rather, Braverman's arguments are more fundamental. She contends that Columbia's statistical data of infection rates is not covered by the statute. And even if this data is covered, Braverman contends that it is exempted from the privilege by virtue of para. (3)(d). Braverman similarly argues that the statute does not apply to the Department or the report it issued. In addition, Braverman contends that the trial court was required to conduct an in camera inspection of the materials she sought by discovery.

DISCUSSION

1. Statistical Data of Infection Rates

¶ 19. Braverman sought Columbia's statistical data regarding the rates of infection for postoperative patients from the year 1990 to the date of her discovery request. Columbia does not deny that this information exists. In her response to one of Braverman's interrogatories, Judy Hintzman, Columbia's Infection Control Coordinator, acknowledged that the hospital's infection control surveillance plan provides for the monitoring of infection rates. And in her affidavit in support of Columbia's protective order, Hintzman stated that the hospital's infection control practitioners compile infection statistics.

¶ 20. Braverman first argues that this kind of statistical data is not even covered by Wis. Stat. § 146.38. But we do not address this argument because we conclude that such information is exempt from the privilege pursuant to para. (3)(d). This provision reads:

(3) Information acquired in connection with the review and evaluation of health care services shall be disclosed and records of such review and evaluation shall be released, with the identity of any patient whose treatment is reviewed being withheld unless the patient has granted permission to disclose identity, in the following circumstances:
(d) In a report in statistical form. The report may identify any provider or facility to which the statistics relatef] (Emphasis added.)

¶ 21. We see this language as clear and unambiguous. And since Columbia's statistical data qualifies under the paragraph, we conclude that Braverman is entitled to discover this data.

¶ 22. Columbia disagrees. It argues that Wis. Stat. § 146.38(3)(d) is rendered ambiguous when considered in light of the entire statute. See State v. Williams, 198 Wis. 2d 516, 527, 544 N.W.2d 406 (1996) ("Subsections of a statute must be interpreted in a manner consistent with the purpose of the statute as a whole .... 'A statute should be construed to give effect to its leading idea, and the entire statute should be brought into harmony with the statute's purpose.'"). Columbia argues that the exemption set out in para. (3)(d) collides with the privilege otherwise conferred by the statute and therefore the statute is ambiguous. Columbia then turns to certain legislative history, which, according to Columbia, reveals that the exemption for statistical data set out in para. (3)(d) was not intended as a full-blown exception to the privilege otherwise created by the statute. Instead, Columbia contends that the exception was intended to apply only to data sharing between professional standards review organizations and health care system agencies.

¶ 23. We have no quarrel with Columbia's argument that we should construe the subsections of a statute in light of the purpose of the statute as a whole. But that does not allow us to rewrite a statute which is otherwise plain and unambiguous on its face. The legislature routinely enacts laws that recite a general rule followed by exceptions. Such action, standing alone, does not render the exception, or the statute, ambiguous. While we can look to legislative history to confirm that a statute is unambiguous, we are not at liberty to do so in the face of language which is clear and unambiguous. State v. Martin, 162 Wis. 2d 883, 897 n.5, 470 N.W.2d 900 (1991). "[W]e presume the legislature chose its terms carefully and with precision to express its meaning." Landis v. Physicians Ins. Co., 2000 WI App 164, ¶ 9, 238 Wis. 2d 190, 616 N.W.2d 910, review granted, 239 Wis. 2d 308, 619 N.W.2d 91 (Wis. Sept. 14, 2000) (No. 00-0330). Columbia's argument also runs afoul of the maxim that privileges created by statute are to be narrowly construed. Franzen, 169 Wis. 2d at 386. That is all the more reason to respect the clear language of the exemption that the legislature has set out in Wis. Stat. § 146.38(3)(d).

¶ 24. We recognize that we may not apply the ordinary and accepted meaning of the language in a statute if it leads to an absurd result. Seider v. O'Connell, 2000 WI 76, ¶ 32, 236 Wis. 2d 211, 612 N.W.2d 659. However, we see nothing absurd about the legislature choosing to exempt statistical data from the general rule of privilege otherwise conferred on the record of a quality assurance procedure under WlS. Stat. § 146.38. While we need not speculate about this legislative choice, it may have come about because the legislature recognized that litigants such as Braverman would have a need for such data, particularly in an informed consent case such as this. Regardless, our role is not to justify the legislative action or to substitute our judgment for that of the legislature. Rather, our role is to examine and interpret the legislative language. And if that language is plain on its face, we are not free to rummage in the legislative history to change the meaning.

¶ 25. In summary, Columbia's remedy lies with the legislature. "If a statute fails to cover a particular situation, and the omission should be cured, the remedy lies with the legislature, not the courts." Michael T. v. Briggs, 204 Wis. 2d 401, 410, 555 N.W.2d 651 (Ct. App. 1996) (citation omitted).

¶ 26. We hold that Braverman is entitled to discover this statistical data. We reverse this portion of the protective order.

2. Report of the Wisconsin Department of Health and Family Services

¶ 27. Braverman also sought discovery of the report generated by the Wisconsin Department of Health and Family Services. This report was the result of Judy Hintzman's request on behalf of Columbia that the Department review and evaluate Columbia's infection quality assurance in light of the increase in nosocomial infections following certain types of surgeries. After applying the Mallon and Franzen tests, the trial court concluded that the Department's report was privileged.

¶ 28. As noted earlier, we do not read Braverman to dispute the trial court's determination that the Department qualifies as an "organization" under the Mallon test or the court's factual findings under the Franzen methodology. Rather, Braverman's argument is more fundamental. She contends on a threshold basis that Wis. Stat. § 146.38 does not apply to the Department or the report it issued. Instead, Braverman says that other statutes which speak specifically to the Department govern the question of whether she may discover the Department's report.

¶ 29. Wisconsin Stat. § 15.19 creates the Department. Wisconsin Stat. § 250.03 assigns certain responsibilities to the Department. WISCONSIN Stat. § 250.04(1) confers authority on the Department to "investigate the cause and circumstances of any special or unusual disease." Section 250.04(3)(b) says that the Department "shall analyze occurrences, trends and patterns of acute, communicable or chronic diseases ... and distribute information based on the analyses." (Emphasis added.) Braverman contends that these statutes collectively, and § 250.04(3)(b) in particular, demonstrate that the records of the Department are subject to disclosure. Braverman also contends that by utilizing the services of the Department, a public entity, Columbia should have expected that the results of any investigation by the Department would be subject to disclosure.

¶ 30. This issue requires us to decide which law applies to the Department's report — the privilege provisions of Wis. Stat. § 146.38 or the relevant provisions of Wis. Stat. ch. 250. We conclude that § 146.38 is the controlling statute because it is the more specific in this setting. "Where a general statute conflicts with a specific statute, the specific statute prevails." Landis, 2000 WI App 164 at ¶ 16. While the relevant provisions of ch. 250 recite the responsibilities and authority of the Department, they do not speak to a situation where the Department is invited by a health care provider to assist in a quality assurance review under § 146.38. Nor do any of the relevant statutes in ch. 250 address any privilege implications resulting from such assistance.

¶ 31. Instead, those matters are specifically addressed in Wis. Stat. § 146.38. That statute clearly envisions entities beyond the health care provider itself participating in the review and evaluation process. Section 146.38(lm) says, "No person who participates in the review or evaluation of the services of health care providers or facilities or charges for such services may disclose any information acquired in connection with such review or evaluation except as provided in sub. (3)." The language "[n]o person" is extremely broad and would certainly include an agency such as the Department. And the language contemplating "charges for such services" additionally reveals that the legislature anticipated outside entities assisting in the review or evaluation. Finally, we note that § 146.38 does not contain any language suggesting that the statute does not govern the Department or any other state agency.

¶ 32. In summary, we conclude that Wis. Stat. § 146.38 is the specific statute that applies under the facts of this case. We affirm the trial court's ruling that Braverman was not entitled to discover the Department's report.

3. In Camera Inspection

¶ 33. Braverman argues that the trial court was obligated to conduct an in camera inspection of the materials she sought. Braverman contends that the trial court cannot perform a meaningful Franzen analysis absent such an inspection. A request to conduct an in camera inspection is addressed to the trial court's discretion. Appleton Post-Crescent v. Janssen, 149 Wis. 2d 294, 302-03, 441 N.W.2d 255 (Ct. App. 1989).

¶ 34. Braverman first argues that both Moroney and Franzen mandate an in camera inspection. True, the Moroney court upheld the trial court's directive that the chairperson of the Wisconsin Patients Compensation Panel review certain of the records in camera to determine whether the materials were privileged. Moroney, 123 Wis. 2d at 100-01. However, unlike this case, the health care provider in Moroney did not claim that the discovery request facially supported the privilege. Id. at 101. Rather, the health care provider's argument was that the panel chairperson, who also served as a member of the panel, would be prejudiced by exposure to material that ultimately might be ruled inadmissible. Id. The court of appeals rejected that argument. In short, the argument made by Braverman in this case was not before the court in Moroney.

¶ 35. Nor was Braverman's argument before the court in Franzen. There, the trial court had conducted an in camera inspection. Franzen, 169 Wis. 2d at 374. After the court of appeals analyzed Wis. Stat. § 146.38 and set out the methodology for a trial court to follow when addressing a privilege question under the statute, the court of appeals directed the trial court to resume that procedure on remand. Franzen, 169 Wis. 2d at 384. However, the court of appeals did not announce that an in camera inspection was essential to the analysis in every instance. More importantly, the methodology set out by the Franzen court does not mention an in camera procedure. Franzen does not support Braverman's argument.

¶ 36. Instead, the controlling case on this issue is Ollman v. Health Care Liability Insurance Plan, 178 Wis. 2d 648, 505 N.W.2d 399 (Ct. App. 1993). There, the plaintiff sought to discover a letter reciting the conclusions of the board of inquiry that had conducted an inquiry under Wis. Stat. § 146.38. Ollman, 178 Wis. 2d at 667-68. The court acknowledged that

where discovery requests "do not, on their face, request materials and information which fall under the protection of sec. 146.38," but the party upon whom the discovery request was made, nonetheless, objects to producing the document, an in camera inspection of the document should be utilized to sort out privileged materials.

Ollman, 178 Wis. 2d at 669-70 (citation omitted). However, the court went on to say that where the discovery request, "on its face," seeks information that is clearly protected by § 146.38, the trial court is not required to conduct an in camera inspection. Ollman, 178 Wis. 2d at 670. Because the discovery request on its face sought the conclusions of the board of inquiry, the court held that the letter was privileged under § 146.38. Ollman, 178 Wis. 2d at 670.

¶ 37. Therefore, under Ollman, our focus is on the materials sought in Braverman's discovery request. As described by the trial court, Braverman sought: "(1) infection control materials, including meeting minutes, infection rates, and the results of any investigations conducted by quality assurance/peer review committees; (2) reports and/or evaluations of the Joint Commission on Hospital Accreditation; and (3) information derived from a quality assurance investigation conducted in association with the Wisconsin Department of Health." On their face, these discovery requests sought the "record of [Columbia's] investigations, inquiries, proceedings and conclusions" under Wis. Stat. § 146.38(2).

¶ 38. Braverman's argument that only an in camera inspection by the trial court will assure a meaningful Franzen analysis leap frogs the first level of the inquiry under Ollman — whether the discovery request is facially sufficient to support the opposing party's invocation of the privilege. Ollman, 178 Wis. 2d at 670. Instead, Braverman would shift the initial burden to the trial court to sift and winnow through the material sought. We reject that approach. While the burden to demonstrate a privilege is on the party asserting it, Franzen, 169 Wis. 2d at 386, the burden to frame a proper discovery demand logically lies with the party making such demand.

¶ 39. Our holding does not leave Braverman without a meaningful ability to conduct discovery. This is because Wis. Stat. § 146.38(2) allows discovery of evidence that is not subject to the privilege conferred by the statute:

No such record may be used in any civil action for personal injuries against the health care provider or facility; however, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10(4) or use in any civil action merely because they were so presented. (Emphasis added.)

Braverman should have worded her discovery requests to target this material. Instead, she filed discovery requests that invaded the privilege of § 146.38, and, as a result, she seeks to burden the trial court with the task of ferreting out what is privileged and what is not. Braverman has the cart before the horse. Her obligation was to make a discovery request which did not facially establish Columbia's privilege. Had she filed a proper request, and if Columbia still claimed privilege, then the trial court may well have been required to conduct an in camera review.

¶ 40. We hold that the trial court did not err in the exercise of its discretion when it chose not to con- . duct an in camera inspection of the materials sought by Braverman.

CONCLUSION

¶ 41. We reverse that portion of the protective order that barred Braverman from discovering Columbia's statistical reports of infection rates. We affirm that portion of the protective order that barred Braverman from discovering the report furnished by the Wisconsin Department of Health and Family Services. We affirm the trial court's rejection of Braverman's request that the court conduct an in camera inspection of the materials sought by Braverman.

¶ 42. Costs are not awarded.

By the Court. — Order affirmed in part; reversed in part and cause remanded.

       Braverman's original and amended complaints named additional defendants. However, the issues on appeal concern only Columbia, its liability insurer and the Wisconsin Patients Compensation Fund.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       Wisconsin Stat. § 146.38 reads in part as follows:
      (1m) No person who participates in the review or evaluation of the services of health care providers or facilities or charges for such services may disclose any information acquired in connection with such review or evaluation except as provided in sub. (3).
      (2) All organizations or evaluators reviewing or evaluating the services of health care providers shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under s. 804.10(4) or otherwise except as provided in sub. (3). No such record may be used in any civil action for personal injuries against the health care provider or facility; however, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10(4) or use in any civil action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.
      (3) Information acquired in connection with the review and evaluation of health care services shall be disclosed and records of such review and evaluation shall be released, with the identity of any patient whose treatment is reviewed being withheld unless the patient has granted permission to disclose identity, in the following circumstances:
      (d) In a report in a statistical form. The report may identify any provider or facility to which the statistics relate!.]

       Despite the trial court's ruling, Braverman nonetheless obtained a copy of the report directly from the Department. Therefore, it may be that this issue is moot. Nonetheless, we choose to answer the issue on the merits because our discussion, although limited to discovery, may have some bearing on the admissibility of the report at the trial.

       Braverman also cites to the Open Records Law, Chapter 19, Subchapter II in support of her argument.

       The closest that Wis. Stat. ch. 250 comes to this topic is WlS. Stat. § 250.04(6) which authorizes the Department to "provide consultation, technical assistance and training regarding public health to local health departments, community organizations and others." (Emphasis added.) But this statute is silent as to privilege.

       We have previously held in this opinion that Braverman is entitled to discover Columbia's statistical reports regarding the infection rates under the exemption created in Wis. Stat. § 146.38(3)(d).

       Although not germane to this case, we observe that Wis. Stat. § 146.38(2) also provides that

        [a]ny person who testifies during or participates in the review or evaluation may testify in any civil action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.
      This preserves Braverman's ability to obtain the testimony, by deposition or otherwise, of persons who have relevant testimony on her claim. Besides the "escape hatches" of § 146.38, Braverman also has all of the other conventional discovery tools available to her.