For years, the legal profession has debated the propriety of judges conducting independent research into facts undeveloped in or omitted from legal briefs. Last year, the Seventh Circuit moved to the forefront of that debate when a panel of that Court splintered over the propriety of using non-record information to inform its deliberations. See Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015), reh’g denied, 2015 WL 10767326 (7th Cir. Dec. 7, 2015). Last week, the Wisconsin Court of Appeals issued an opinion highlighting the pitfalls of judicial fact investigations to supplement the record in a case and emphatically reasserting that state judges in Wisconsin shall not undertake such inquiries. See State v. Enriquez, No. 2015AP1850-CR (Wis. Ct. App. July 27, 2016).

Rowe presents a good window into the terms of the larger debate. Jeffrey Rowe was an Indiana prison inmate suffering from gastroesophageal reflux disease. He brought suit against prison officials he alleged had shown deliberate indifference to his condition and some of whom he alleged had deliberately retaliated against him for complaining. One of the defendants was Dr. William Wolfe, who works at the prison. In response to Rowe’s allegations, Dr. Wolfe submitted two affidavits to the trial court, offering his expert opinion that Rowe’s claims were unfounded. Rowe had no attorney and no medical expert witness. When he asked the trial court to appoint both counsel and an expert to help him rebut Dr. Wolfe’s affidavits, the trial court refused. The trial court then granted summary judgment in favor of the defendants, based on Dr. Wolfe’s uncontested expert opinion.

The Seventh Circuit reversed the grant of summary judgment with respect to most of the defendants, including Dr. Wolfe. The Court’s opinion, written by Judge Richard Posner, cites heavily to resources found on websites of the National Institutes of Health, the Mayo Clinic, the Physicians’ Desk Reference, and the manufacturer of the medication Zantac, as well as WebMD and Wikipedia. Judge Posner defended citations to “highly reputable medical websites” for information that “tends to fall somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice.” Id. at 628. He noted that the Court was “not deeming the Internet evidence cited in this opinion conclusive or even certifying it as being probably correct,” because it was used only to illustrate the existence of factual disputes that would be resolved in the trial court through traditional methods. Id. at 629. And he cautioned that judicial “Internet research must be conducted with circumspection” and “must not be allowed to extinguish reasonable opportunities for rebuttal.” Id. at 631.

Notwithstanding these caveats, Judge Posner’s colleagues did not support his reliance on facts outside of the record. In concurring with Judge Posner’s opinion, Judge Ilana Rovner made a point of saying she did “not believe that the resolution of this case require[d] any departure from the record,” because Rowe’s allegations themselves, if assumed true as required at this stage of proceedings, were sufficient to raise a factual dispute. Id. at 635 (Rovner, J., concurring). Judge David Hamilton went further, complaining that “the majority’s decision is an unprecedented departure from the proper role of an appellate court” and “seems to have created an entirely new, third category of evidence, neither presented by the parties nor properly subject to judicial notice.” Id. at 636, 639 (Hamilton, J., concurring in part and dissenting in part). Judge Hamilton argued that “[a]ppellate courts simply do not have a warrant to decide cases based on their own research on adjudicative facts” and lamenting that the Rowe decision would “become Exhibit A in the debate” over judges conducting their own factual inquiries outside of the record. Id. at 638.

At the very least, Judge Hamilton’s last prediction—that Rowe would attract notice and reignite a long-simmering debate—proved correct. Commentators had a field day with Rowe and the issues it brought back to the fore. The American Bar Association’s Litigation journal recently published an article examining the controversy. See Jonathan B. Amarillo & Jillian S. Cole, The Row Over Rowe: What to Do with Facts “Between” the Record, 42 Litig. (Summer 2016), at 53.

The same day that the new Litigation article landed on my desk, the Wisconsin Court of Appeals handed down its decision in Patricia Enriquez’s challenge to her criminal sentence for selling non-narcotic prescription drugs. That case, arising in a very different context than Rowe, touched upon some of the same issues. But the Wisconsin Court of Appeals took a much harder line than the Seventh Circuit did on the propriety of judicial fact investigations.

Enriquez, a nurse, pleaded guilty in exchange for the State’s agreement to recommend a three-year sentence, equally divided between imprisonment and extended release. At sentencing, the prosecutor urged the circuit court to accept the State’s recommendation. The defense, echoing the recommendation made by the Department of Corrections, argued for probation. After Enriquez addressed the court and accepted responsibility, the judge “presented the prosecutor and defense counsel with documents the court had printed out from the internet regarding Enriquez’s nursing licenses in Arizona, Illinois, Texas, and Wisconsin.” Enriquez, slip op., ¶6.

According to the court, the documents it had found online showed that Enriquez had her nursing license revoked in Texas “‘for 17 counts of taking Morphine,’” never had a nursing license in Illinois, had been subject to disciplinary action in Arizona within the past decade, and had not had a nursing license in Wisconsin since 1992. Id., ¶¶6-7. When Enriquez tried to provide additional information—including that the charges in Texas were never substantiated and that she returned her license there voluntarily when she moved out of the state—the judge cut her off, warning “‘your lies are getting you in trouble’” and suggesting she “‘close [her] mouth.’” Id., ¶7. The court then called Enriquez “‘probably the biggest liar’ that had ever come before the court,” with the judge noting “‘I didn’t make this stuff up.’” Id., ¶8.

The court then sentenced Enriquez to five years imprisonment, followed by six years extended supervision—more than tripling the State’s recommended sentence. Enriquez moved for resentencing, “arguing that the court relied on inaccurate information, that she was denied her right to rebut information, [and] that the court was objectively biased.” Id., ¶12. To support her motion, Enriquez submitted documents “indicating that she held a license as a registered professional nurse with the State of Illinois from May 5, 1986, until May 31, 2014.” Id., ¶13. She also provided documents from the Texas Board of Nursing, reflecting “that she had voluntarily surrendered her nursing license”; the voluntary termination paperwork contained a document showing that Enriquez was charged with seventeen violations of Texas law, most but not all of which involved misuse or mishandling of morphine. Id., ¶13 & n.5. The State did not file a written response. After a hearing, the circuit court denied Enriquez’s motion for resentencing. Enriquez appealed.

The court of appeals held that the circuit court denied Enriquez her constitutionally protected due process right to be sentenced upon accurate information. Id., ¶21. That holding relies on the fact that the sentencing judge said Enriquez had not been licensed for nursing in Illinois, while she subsequently showed that she had been, even after she relinquished her Texas license. Because the court of appeals determined that the circuit court’s misinformation on the status of Enriquez’s licensure in Illinois formed part of the basis for her sentence, the misinformation required resentencing (which the court of appeals directed to be handled by a different circuit court judge).

Of particular interest is the appellate court’s discussion of the sentencing judge’s Internet research. At the hearing on Enriquez’s resentencing motion, the judge asserted that he had done nothing wrong by reviewing public records: “‘All I did was access a public record. You can go on the Internet. Although I’m not that good on the Internet, I could find these things. And so I accessed them from the various dates.’” Id., ¶17. The court of appeals noted that the sentencing court had “apparently limited its search to Cook County,” instead of the entire state of Illinois, which apparently accounted for the judge’s belief that Enriquez was never licensed in Illinois and Enriquez’s ability to show that she had been licensed for more than 28 years. Id., ¶24. The court of appeals also included a long footnote citing Supreme Court Rule 60.04, the comments to which provide that “‘a judge must not independently investigate facts in a case and must consider only the evidence presented.’” Id., ¶24 n.6. The court went on to recite the Supreme Court holding that “‘a judge must not go out and gather evidence in a pending case’” because “‘[t]o do so is error.’” Id. (quoting State v. Vanmanivong, 2003 WI 41, ¶34, 261 Wis. 2d 202, 661 N.W.2d 76).

Given the facts in Enriquez, the Seventh Circuit would probably reach a similar outcome. Rowe cautioned that judicial “Internet research must be conducted with circumspection and “must not be allowed to extinguish reasonable opportunities for rebuttal.” 798 F.3d at 631. In Enriquez, the sentencing court was not circumspect and shut down Enriquez’s efforts to rebut the conclusions the judge drew from his research. Nor was the research in Enriquez used only at a preliminary stage where it would necessarily be tested through traditional evidentiary methods before being considered in an adjudication. See id. at 629.

But the Enriquez decision, and the authority it cites, draws a much firmer line than Rowe adopted. In Wisconsin, judicial investigations of facts not presented by the parties are forbidden. That is the position that Judge Hamilton adopted in the Rowe dissent, but it is far from clear that the Seventh Circuit would impose such a categorical rule upon federal trial courts within its jurisdiction.

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