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Wisconsin

Open Courts Compendium

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James A. Friedman
Godfrey & Kahn, S.C.
One East Main Street, Suite 500
P.O. Box 2719
Madison, WI  53701-2719
(608) 257-3911

Last updated February 2018

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

See State ex rel. Stevens v. Circuit Court for Manitowoc County, 141 Wis. 2d 239, 414 N.W.2d 832 (Wis. 1987) (Recognizing various constitutional provisions providing right to public trial):

The sixth amendment of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” … The “public trial” right is also referred to in art. I, sec. 7 of the Wisconsin Constitution.

The [United State Supreme] Court reasoned that the aims and interests protected by requiring a trial to be public were no less pressing in a suppression hearing, and that “the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.”

See Wis. Const. art. I, § 7:

In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

See Wis. Stat. § 757.14:

The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.

See State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis. 2d 220, 340 N.W.2d 460 (Wis. 1983) (discussing Wis. Stat. § 757.14):

We emphasize that the presumption under the statute is clear-that courts at all sittings thereof are to be open to the public and may be closed only when, in the exercise of discretion, the trial court determines, after hearing and the making of explicit findings, that overwhelming public values connected with the administration of justice will be subverted by public trial.  The failure to expressly exercise discretion on the basis of findings of fact will be deemed an abuse of discretion.  Findings of fact are to be made only after an opportunity is given to the parties and to the public to be heard. . . . Although in the instant case we address only the statutory right, the right of public access to the courts is not a right to be taken lightly; and, accordingly, the closing of the court to the general public should be made deliberately and rationally and in a manner that the propriety of the exercise of discretion can be reviewed by an appellate court.  It would appear that the great virtue in our Anglo-American court system is that it is open to the public so that all will know that the courts, as instruments of government, are defending the rights of the people and are not suppressing them. Thus it will be rare indeed when a trial judge can appropriately and in the exercise of discretion conclude that the quest for justice will be better served by secrecy than by public disclosure.

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B. Overcoming a presumption of openness

See State v. Ndina, 315 Wis. 2d 653, 761 N.W.2d 612 (Wis. 2003) (addressing Sixth Amendment right to public trial):

A “presumption of openness” exists.  The right to a public trial is not, however, absolute.  Despite a vast number of cases involving a myriad of fact situations exploring the Sixth Amendment right to a public trial, determining the contours of the right in a particular fact situation remains difficult.

. . .

The Supreme Court has described four values furthered by the Sixth Amendment guarantee of a public trial:  “(1) to ensure a fair trial; (2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury.”

. . . .

Closure of a criminal trial is justified when four conditions are met:  “(1) the party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial, (2) the closure must be narrowly tailored to protect that interest, (3) alternatives to closure must be considered by the trial court, and (4) the court must make findings sufficient to support the closure.” The case law typically refers to this four-part test as the “Waller test,” referring to the United States Supreme Court’s decision in Waller v. Georgia, 467 U.S. 39 (1984) (fn).

(fn) The test has its origins in First Amendment jurisprudence.  SeePress-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 509‑10, 104 Sc.D. 819, 78 L.Ed.2d 629 (1984) (“The circumstances under which the press and public can be barred from a criminal trial are limited.... The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”) (quoted source omitted).  See alsoWaller, 467 U.S. at 44‑46, 104 S. Ct. 2210 (stating that the analysis in Press-Enterprise Co. and several predecessor cases “proceeded largely under the First Amendment”).

In comparing the Sixth Amendment right to a public trial with its analogue in First Amendment, the Supreme Court has stated that “the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.”  Waller, 467 U.S. at 46, 104 S. Ct. 2210.

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C. Procedural prerequisites to closure

See State ex rel. La Crosse Tribune v. Circuit Court for LaCrosse County, 115 Wis. 2d 220, 340 N.W.2d 460 (Wis. 1983):

We emphasize that the presumption under the statute is clear-that courts at all sittings thereof are to be open to the public and may be closed only when, in the exercise of discretion, the trial court determines, after hearing and the making of explicit findings, that overwhelming public values connected with the administration of justice will be subverted by public trial.  The failure to expressly exercise discretion on the basis of findings of fact will be deemed an abuse of discretion.  Findings of fact are to be made only after an opportunity is given to the parties and to the public to be heard.

Cf. Stevens v. Manitowoc Cir. Ct., 141 Wis. 2d 239, 414 N.W.2d 832 (Wis. 1987):

When a complainant seeks closure under [Wis. Stat. sec. 970.03(4)], the state must first advance a compelling interest which would be likely to be prejudiced absent closure, such as the need to protect a sexual assault victim from undue embarrassment and emotional trauma. Where the circuit court finds this or any other appropriately compelling basis for closure, it must narrowly tailor its closure order. In determining the breadth of the order, the circuit court must consider reasonable alternatives to full closure of the entire preliminary examination. In addition, the circuit court must articulate specific findings adequate to support closure.

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II. Procedure for asserting right of access to proceedings and records

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A. Media standing to challenge closure

See State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 65 Wis. 2d 66, 221 N.W.2d 894 (Wis. 1974) (reporter had standing to challenge closure of court proceedings under former state statute):

[Former] Sec. 256.14, Stats., says, “The sittings of every court shall be public and every citizen may freely attend the same . . .”  We have no trouble construing those words; their meaning is clear.  It means any citizen has the right to attend immunity hearings arising out of a John Doe proceeding.  Where such right of attendance is denied, any citizen, including the petitioner [reporter] in this case, has a right to bring an action to enforce the right which the statute so clearly gives.

State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis. 2d 220, 340 N.W.2d 460 (Wis. 1983):

The petitioners do not argue that, by virtue of [open courts law, Wis. Stat. Sec.§ 757.14], Rindfleisch, a reporter, is to be given some special privileges because he represents the press.  It is merely their contention that Rindfleisch, as one member of the public, was entitled to the presumptive requirement of openness mandated by the statute.  In light of the conclusions heretofore reached in this opinion, Rindfleisch is entitled to the presumption of openness of court proceedings.

See also State ex rel. Storer Broadcasting Co. v. Gorenstein, 131 Wis.2d 342, 388 N.W.2d 633 (Wis. App. 1986) (footnotes omitted):

The Wisconsin supreme court has stated that “the right of public access to the courts is not a right to be taken lightly.”  The purpose of sec. 757.14, Stats., is to protect the right of the people to an open and responsible government.  It is true that the media have no special right in this regard.  As representatives of the public, however, the media have the right to public access to the courts.  It is irrelevant that, as the court stated, “[t]here hasn’t been any group that has rushed forward with [the media’s] tenacity ... on behalf of the public.” The right of public access exists for the public, of which the media are a part.  The trial court was mistaken in treating this matter lightly.

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B. Procedure for requesting access in criminal cases

Members of the news media generally use the same procedure for challenging a court’s closure of criminal proceedings and records.  See Wis. Stat. § 803.09 (Intervention):

(1) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest related to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant’s ability to protect that interest, unless the movant’s interest is adequately represented by existing parties.

(3) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.  The same procedure shall be followed when a statute gives a right to intervene.

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C. Procedure for requesting access in civil matters

See Wis. Stat. § 803.09 (Intervention):

(1) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest related to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant’s ability to protect that interest, unless the movant’s interest is adequately represented by existing parties.

(3) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.  The same procedure shall be followed when a statute gives a right to intervene.

See, e.g., State ex rel. Bilder v. Delavan Township, 112 Wis. 2d 539, 334 N.W.2d 252 (Wis. 1983) (Members of news media generally have a right to intervene to challenge closure of courtroom and records).

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D. Obtaining review of initial court decisions

See State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 65 Wis. 2d 66, 221 N.W.2d 894 (Wis. 1974) (Petition for writ of prohibition to state supreme court was proper method for reporter to challenge lower court’s closure of proceeding, under rights afforded by former state statute).

Cf. State ex rel. Storer Broadcasting Co. v. Gorenstein, 131 Wis. 2d 342, 388 N.W.2d 633 (Wis. App. 1986) (petition for writ of prohibition, not mandamus, proper relief to request in challenging a trial court’s closing of voir dire).

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III. Access to criminal proceedings

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A. In general

See Wis. Stat. § 757.14:

The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.

See Wis. Const. art. I, § 7:

In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

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B. Pretrial proceedings

See State ex rel. Storer Broadcasting Co. v. Gorenstein, 131 Wis. 2d 342, 388 N.W.2d 633 (Wis. App. 1986) (footnotes omitted):

It is clear that a trial court judge, in his or her discretion, may close the sitting of a court. Voir direof a jury panel, although a pretrial proceeding, has been held to be a sitting of the court.  For a trial court to order closure, however, the reasons must be compelling, substantial, and “weighty and overwhelming.”  Such reasons must be sufficient to overcome the presumption that a jury voir direwill be open to the public.

Cf. Stevens v. Manitowoc Cir. Ct., 141 Wis. 2d 239, 414 N.W.2d 832 (Wis. 1997):

Based on the Supreme Court’s analysis in Press-Enterprise II, which specifically addressed closure of a preliminary hearing, and the Court’s rationale in extending the sixth amendment public trial right in Waller, we hold that a preliminary examination is sufficiently analogous in the purposes and aims which support the public trial requirement that a qualified sixth amendment public trial right must adhere when closure is sought by the complainant under sec. 970.03(4), Stats. We therefore overrule that part of the holding of Kennon which concludes that a qualified right to a public preliminary examination is not constitutionally guaranteed.

. . .

Under the plain language of sec. 757.14, Stats., there is a presumption of openness which extends to “every citizen” for “the sittings of every court.”  The statute makes no exception or special provision for members of the press, though in State ex rel. Newspapers, Inc. v. Circuit Court, 65 Wis. 2d at 69, 221 N.W.2d at 895, this court held that a journalist may invoke the provisions of this statute as a citizen and a member of the public.

See also State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (Wis. 1991) (holding that trial court violated defendant’s Sixth Amendment right by closing preliminary hearing, but fair and errorless trial cured defect); State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 124 Wis. 2d 499, 370 N.W.2d 209 (Wis. 1985) (Presumption of openness applies to a precomplaint hearing):

We hold that a section 968.02(3) hearing is subject to the same presumption of openness that applies to most judicial proceedings in Wisconsin.  This is not based on a conclusion that such a hearing is a “sitting of the court” within the meaning of section 757.14. … Rather, the presumption of openness here is based upon other factors.

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C. Criminal trials

See State v. Vanness, 2007 WI AP 195, 304 Wis. 2d 692, 738 N.W.2d 154 (Locking courthouse after business hours violated defendant’s right to a public trial):

The public was denied access to the trial during both Vanness’s defense and the State’s rebuttal, including testimony from two new witnesses.  Like the announcement of the verdict, we conclude the accused’s response to the accusations against him or her, and the state’s rebuttal are critical proceedings in criminal trials.  Therefore, the closure was not a trivial violation.  Consequently, because Vanness’s constitutional right to a public trial was violated, the order and judgment are reversed and the matter is remanded for a new trial.

See State ex rel. LaCrosse Tribune v. Circuit Court for LaCrosse County, 115 Wis. 2d 220, 340 N.W.3d 460 (Wis. 1983) (In camera voir dire of venire panel members in criminal prosecution constituted an abuse of discretion):

The term, “sitting of a court,” is a broad term, which this court ought to interpret in accordance with the clear and express legislative policy that courts are to be open to all the people.  The fact that the court sits in the judge’s chambers, rather than in a courtroom, is irrelevant to whether or not it constitutes a sitting of a court. … Clearly, the venue or locale of the proceedings cannot legitimately transform what is otherwise required to be an open court proceeding into a closed-chamber procedure with the public and the press excluded.

Looking then at the plain language of the statute, we conclude that it is the public policy of this state that a sitting of a court which encompasses the voir dire procedure is presumptively to be open to the public.

See State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612 (Trial court did not abuse its discretion by sequestering defendant’s family members during trial):

In the present case, however, the defendant’s family members posed a threat to the circuit court’s sequestration order that the circuit court could not observe or control. It would have been difficult if not impossible for the circuit court to determine which family members were likely to convey the contents of witness testimony to any of the numerous other family members listed as potential witnesses.

Although we acknowledge that the circuit court’s findings on the record are limited and no hearing was held, we nevertheless conclude that the record is sufficient to support the closure order.  The closure was narrowly tailored to serve an overriding interest likely to be prejudiced unless the family members were excluded.

For the reasons set forth, we conclude that the circuit court did not violate the defendant’s Sixth Amendment right to a public trial.

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D. Post-trial proceedings

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E. Appellate proceedings

See Wis. Stat. § 757.14:

The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.

See State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850 N.W.2d 207 (Abrahamson, C.J. dissenting): "It is the responsibility of the trial and appellate courts of the state to keep judicial proceedings public and open …."

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IV. Access to criminal court records

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A. In general

See Wis. Stat. § 19.35(1)(a):

"Except as otherwise provided by law, any requester has a right to inspect any record.  Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect."

See Wis. Stat. § 19.32(1): "'Authority' means any of the following having custody of a record: … any court of law …."

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B. Arrest records

See Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (Wis. 1979):

Information concerning the operations of the police department in making arrests and the charges upon which arrests are made is vital to the democratic system; and presumptively, by statute, the records are to be open.  While in some cases involving police functions there is an overriding public interest in preserving secrecy … no overriding public-interest concern is discernible when the executive act of arrest has been completed. An arrest is the exercise of the government’s power to deprive an individual of freedom.  The government is required to have probable cause whenever it deprives an individual of personal liberty, and it is offensive to any system of ordered liberty to permit the government to keep secret its reason for depriving an individual of liberty.

We hold as a matter of law that the harm to the public interest in the form of possible damage to arrested persons’ reputations does not outweigh the public interest in allowing inspection of the police records which show the charges upon which arrests were made.  The police “blotter” shall be open for inspection by the public at any time when the custodian’s office is open for business and the “arrest list” or the police “blotter” is not actually being used for the making of entries therein.

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C. Dockets

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E. Discovery materials

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F. Pretrial motions and records

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G. Trial records

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H. Post-trial records

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I. Appellate records

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J. Other criminal court records issues

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V. Access to civil proceedings

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A. In general

See Wis. Stat. § 757.14:

The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.

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B. Pre-trial proceedings

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C. Trials

See Bloomer v. Bloomer, 197 Wis. 140, 221 N.W. 734 (Wis. 1928) (Under predecessor to Wis. Stat. § 757.14, the trial court did not abuse its discretion by excluding minors and the news media from the courtroom during “salacious” testimony concerning sexual relations):

If the court may impound the testimony after it has been taken so that news gatherers may not spread its salacious details before the public, the court must of necessity have the power to make such purpose effective by preventing the spread of such details before the public during the trial by excluding news gatherers from the courtroom or by temporarily holding court in some other room during the time that such proof is being offered.

The cases on which the husband relies are those on which the entire trial was conducted before a referee or behind closed doors.  They do not decide that a court may not proceed as the trial court did in this case while testimony was being taken that was of such a nature that the protection of the public morals required that it should be taken out of the hearing of minors or such other persons as might be in the courtroom.

See State ex rel. Ampco Metal, Inc. v. O’Neill, 273 Wis. 530, 78 N.W.2d 921 (Wis. 1956):

For the protection of the complainant, the usual course is to take the evidence as to the [trade] secret in camera….

This we do by holding that the taking of certain evidencein camera, in those rare situations where justice cannot be properly administered without so doing, does not violate the public trial concept of such statutes.

As pointed out earlier in this opinion, unless the testimony as to plaintiff’s claimed trade secrets be taken in camera, Ampco will be denied any effective remedy for the wrong it has sustained, assuming the truth of the allegations in its complaint.

See Wiedenhaupt v. Hoelzel, 254 Wis. 39, 35 N.W.2d 207 (Wis. 1948):

As to the last contention, it is the well-settled rule in this state that all proceedings in a case shall be open and public; that any communication with the jury, after the case is submitted to them and they have retired for deliberation on their verdict, by any person, shall be in open court, and in the presence of the parties or their representatives, where practicable.

We hold that the communication had between the jury and the judge, through the reporter, is sufficient ground for setting aside the verdict and for ordering a new trial.

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D. Post-trial proceedings

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E. Appellate proceedings

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VI. Access to civil records

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A. In general

See Wis. Stat. § 19.35(1)(a):

Except as otherwise provided by law, any requester has a right to inspect any record.  Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect.

See Wis. Stat. § 19.32(1): “'Authority' means any of the following having custody of a record: … any court of law …."

See C.L. v. Edson, 140 Wis. 168, 409 N.W.2d 417 (Wis. App. 1987):

We conclude that due to the amendment [to Wis. Stat. § 19.32(1)], the legislature intended the courts to apply the ch. 19 balancing test to questions involving disclosure of court records.

We first stress that public records, including court documents, are subject to a strong presumption favoring their disclosure. … In order to overcome the presumption favoring disclosure, under the Hathawaytest, the original parties must show that public interests favoring secrecy outweigh those favoring disclosures.

 

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B. Dockets

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C. Discovery materials

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D. Pre-trial motions and records

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E. Trial records

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F. Settlement records

See Journal/Sentinel, Inc. v. School Bd. of School Dist. of Shorewood, 186 Wis. 2d 443, 521 N.W.2d 165 (Wis. App. 1994):

Furthermore, if the school board’s argument were accepted, public scrutiny of most if not all settlement agreements involving government would be barred – promises of confidentiality would then be de rigueur.  This would effectively end-run the openness mandated by Wisconsin’s public-records law, and the presumption of access.  If a lawsuit cannot be settled unless its terms are kept secret, the case will go to trial, where, absent special circumstances, public access is the rule.

The presumption that public records in Wisconsin are open to the public is not outweighed by whatever benefits may have accrued to the public as the result of the Shorewood District’s promise to Moore that the terms of the settlement would not be disclosed to the public.

See C.L. v. Edson, 140 Wis. 168, 409 N.W.2d 417 (Wis. App. 1987):

The original parties first argue that because they are private individuals, there is no compelling public interest in disclosing the sealed [settlement] documents.  The presumption favoring disclosure reflects public interests that are independent of the parties’ status as private persons.

Moreover, sec. 807.10, requiring judicial review of settlements involving minors, represents a legislative mandate for scrutiny.  This mandate is better served when the public can monitor judicial supervision of minor settlements.

The parties have failed to show that the public’s interest in encouraging settlements overcomes the strong presumption favoring disclosure of court documents.

We conclude that the circuit court correctly weighed the considerations presented by the original parties in deciding that the public interest in disclosure outweighed any need for secrecy.

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G. Post-trial records

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H. Appellate records

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I. Other civil court records issues

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VII. Jury and grand jury access

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A. Access to voir dire

See State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis. 2d 220, 340 N.W.2d 460 (Wis. 1983):

Looking then at the plain language of the statute [Wis. Stat. § 757.14], we conclude that it is the public policy of this state that a sitting of a court which encompasses the voir direprocedure is presumptively to be open to the public.

Cf. State ex rel. Storer Broadcasting Co. v. Gorenstein, 131 Wis. 2d 342, 388 N.W.2d 633 (Wis. App. 1986) (footnotes omitted):

It is clear that a trial court judge, in his or her discretion, may close the sitting of a court. Voir dire of a jury panel, although a pretrial proceeding, has been held to be a sitting of the court.  For a trial court to order closure, however, the reasons must be compelling, substantial, and “weighty and overwhelming.” Such reasons must be sufficient to overcome the presumption that a jury voir dire will be open to the public.

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B. Juror identities, questionnaires and other records

See State v. Tucker, 259 Wis. 2d 484, 657 N.W.2d 484 (Wis. 2003):

As illustrated by these federal and state court decisions, the restriction of juror information raises serious concerns regarding a defendant’s rights to an impartial jury and a presumption of innocence. . . .

. . .

Based on all the above, we hold that when a circuit court restricts any juror information, the court must:  (1) make an individualized determination that the jury needs protection; and (2) take reasonable precautions to minimize any prejudicial effect to the defendant, which includes making a precautionary statement to the jury so that the restriction does not negatively reflect on the defendant’s guilt or character.

See also State v. Matos, 272 Wis. 854, 679 N.W.2d 926 (Wis. App. 2004) (per curiam) (unpublished) (citations omitted):

In Tucker, the supreme court set out the criteria for restricting information about jurors.  Before a circuit court may restrict juror information, the court “should determine that the jurors are in need of protection and take reasonable precautions to avoid prejudice to the defendant.”  The court must make an individualized determination based on the circumstances of the case.  Factors to be considered by the circuit court include but are not limited to:

(1) the defendant’s involvement in organized crime; (2) the defendant’s participation in a group with the capacity to harm jurors; (3) the defendant’s past attempts to interfere with the judicial process; and (4) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment.

But see State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 (Wis. App. 1996) (Trial court did not abuse discretion when empaneling anonymous jury by not revealing juror names during voir dire):

Because the record supports the court’s determination that the jury needed the protection of anonymity and because the court took reasonable precautions to otherwise protect Britt’s right to a fair and impartial jury, we affirm the court’s ruling.

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C. Grand jury proceedings and records

Wisconsin’s statutes do not contain a grand jury process.  Instead, a district attorney or any other person may request that a judge convene a “John Doe” proceeding, under Wis. Stat. § 968.26, to determine whether a crime has been committed.  John Doe proceedings generally are not open to the public.  See Wis. Stat. § 968.26(4)(a): "The judge may enter a secrecy order upon a showing of good cause by the district attorney."

See State ex rel. Jackson v. Coffey, 18 Wis. 2d 529, 118 N.W.2d 939 (Wis. 1963): "Although the sitting of the court for this purpose [John Doe proceeding] need not be public …."

See also State v. Washington, 83 Wis. 2d 808, 266 N.W.2d 597 (Wis. 1978) (holding that John Doe judge did not deny defendant due process when he held contempt proceedings as part of closed John Doe investigation).

But see State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 65 Wis. 2d 66, 221 N.W.2d 894 (Wis. 1974) (Motion to compel witness to testify or produce documents at John Doe proceeding must be heard in open court); see also State ex rel. Niedziejko v. Coffey, 22 Wis. 2d 392, 126 N.W.2d 96 (Wis. 1964): "Hearings to grant immunity [in John Doe proceedings] must be public and in open court except as provided in sec. 256.14 [predecessor to Wis. Stat. § 757.14]."

See Wis. Stat. § 968.26(4)(b):

If a judge enters a secrecy order under par. (a), the judge shall terminate that secrecy order if any person applies to the judge for the termination and establishes that the good cause shown under par. (a) no longer exists.  If a judge terminates a secrecy order entered under par. (a), the identity of the subject of the proceeding under this section may not be disclosed without the subject’s consent, except as provided in par. (c) [if a criminal complaint is filed].

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D. Interviewing jurors

There is no prohibition in Wisconsin on interviewing jurors after their service is completed.  Wis JI-Civil 197:  Instruction After Verdict Is Received:

Your service in this case is completed.  Many jurors ask if they are allowed to discuss the case with others after receipt of the verdict.  Because your role in the case is over, you are not prohibited from discussing the case with anyone.  However, you should know that you do not have to discuss the case with anyone or answer any questions about it from anyone other than the court.  This includes the parties, lawyers, the media, or anyone else.

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VIII. Proceedings involving minors

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A. Delinquency

See Wis. Stat. § 938.299(1)(a):

Except as provided in par. (ar), the general public shall be excluded from hearings under this chapter unless a public fact-finding hearing is demanded by a juvenile through his or her counsel. … If a public hearing is not held, only the parties, their counsel, witnesses, a representative of the news media who wishes to attend the hearing for the purpose of reporting news without revealing the identity of the juvenile involved and other persons requested by a party and approved by the court may be present.

See State ex rel. E.R. v. Flynn, 88 Wis. 2d 37, 276 N.W.2d 313 (Wis. App. 1979) (recognizing news media’s right to attend hearing involving minor before the passage of the statute).

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B. Dependency

See Wis. Stat. § 48.299(1):

(a) The general public shall be excluded from hearings under this chapter and from hearings by courts exercising jurisdiction under s. 48.16 [petitions for waiver of parental consent to a minor’s abortion] unless a public fact-finding hearing is demanded by a child through his or her counsel, by an expectant mother through her counsel, or by an unborn child’s guardian ad litem. However, the court shall refuse to grant the public hearing in a proceeding other than a proceeding under s. 48.375(7) [parental consent required prior to abortion], if a parent, guardian, expectant mother, or unborn child’s guardian ad litem objects.

(ag)      In a proceeding other than a proceeding under s. 48.375(7), if a public hearing is not held, only the parties and their counsel or guardian ad litem, the court-appointed special advocate for the child, the child’s foster parent or other physical custodian described in s. 48.62(2), witnesses, and other persons requested by a party and approved by the court may be present, …. Except in a proceeding under s. 48.375(7), any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar or a person engaged in the bona fide research, monitoring, or evaluation of activities conducted under 42 USC 629h, as determined by the director of state courts, may be admitted by the court.

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C. Other proceedings involving minors

See State v. Roders, 125 Wis. 2d 572, 373 N.W.2d 85 (Wis. App. 1985) (unpublished) (Court did not abuse its discretion when it denied the defendant’s request to exclude the parents of minor victims from the courtroom during a criminal trial); see also State v. G.B., 204 Wis. 2d 108, 552 N.W.2d 897 (Ct. App. 1996) (unpublished).

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D. Prohibitions on photographing or identifying juveniles

See Wis. Stat. § 938.299(1)(a):

Except as provided in par. (ar), the general public shall be excluded from hearings under this chapter unless a public fact-finding hearing is demanded by a juvenile through his or her counsel. … If a public hearing is not held, only the parties, their counsel, witnesses, a representative of the news media who wishes to attend the hearing for the purpose of reporting news without revealing the identity of the juvenile involved and other persons requested by a party and approved by the court may be present.

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E. Minor testimony in non-juvenile courts

See State v. Roders, 125 Wis. 2d 572, 373 N.W.2d 85 (Wis. App. 1985) (unpublished) (Court did not abuse its discretion when it denied the defendant’s request to exclude the parents of minor victims from the courtroom during a criminal trial); see also State v. G.B., 204 Wis. 2d 108, 552 N.W.2d 897 (Ct. App. 1996) (unpublished).

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

Tribal courts are not subject to Wisconsin’s constitutional and statutory rules on open courts.  Each Indian Nation court sets its own rules.

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B. Probate

Wis. Stat. chapter 879 on Probate contains no specific provisions on open courtrooms. Hence, probate proceedings are subject to the general openness mandated by Wis. Stat. § 757.14 and case law interpreting it.

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C. Competency and commitment proceedings

See Wis. Stat. § 51.20(5):

The hearings which are required to be held under this chapter shall conform to the essentials of due process and fair treatment including the right to an open hearing, the right to request a closed hearing, ….

See Wis. Stat. § 51.20(12):

Every hearing which is held under this section shall be open, unless the subject individual or the individual’s attorney, acting with the individual’s consent, moves that it be closed.  If the hearing is closed, only persons in interest, including representatives of providers of service and their attorneys and witnesses may be present.  If the subject individual is a minor, every hearing shall be closed unless an open hearing is demanded by the minor through his or her counsel.

See State ex rel. Wisconsin State Journal v. Circuit Court for Dane County, Branch 2, 131 Wis. 2d 515, 389 N.W.2d 73 (Wis. App. 1986):

Section 51.20(12), Stats., read in light of its legislative history and the strong statutory presumption favoring public trials, requires more than a simple request in order to close a reexamination hearing.  It requires the trial court to exercise its discretion under the guidelines set forth in LaCrosse Tribuneand McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971).  Because the trial court, proceeding on an erroneous view of the statute, did not hold a hearing on the question of closure, it abused its discretion.

See State v. Paulick, 210 Wis. 2d 500, 568 N.W.2d 322 (Wis. App. 1997) (unpublished) (Trial court did not abuse its discretion in denying motion to close hearing under Wis. Stat. chapter 980 sexually violent person determination):

The trial court properly denied Paulick’s request for a closed hearing. … Court proceedings are generally open to the public unless otherwise provided by law. … There is a presumption that court proceedings will be held in public and the reasons for closing them to the public must be substantial. … Paulick presented no compelling reason for closing the proceedings to the public.  In addition, the record discloses no prejudice resulting from the public hearing.

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D. Attorney and judicial discipline

See Wis. Supreme Court Rule 22.40(1):

Prior to the filing of a misconduct complaint, medical incapacity petition, or petition for temporary license suspension, all papers, files, transcripts, and communications in any matter involving the office of lawyer regulation are to be held in confidence by the director and staff of the office of lawyer regulation, the members of the district committees, special investigators, the members of the special preliminary review panel, and the members of the preliminary review committee. Following the filing of a complaint or petition, the proceeding and all papers filed in it are public, except as expressly provided otherwise in this chapter or by law.

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E. Immigration proceedings

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F. Other proceedings

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

See Wis. Stat. § 803.09:

(2) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest related to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant’s ability to protect that interest, unless the movant’s interest is adequately represented by existing parties.

(4) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.  The same procedure shall be followed when a statute gives a right to intervene.

See, e.g., State ex rel. Bilder v. Delavan Township, 112 Wis. 2d 539, 334 N.W.2d 252 (Wis. 1983) (Members of news media generally have a right to intervene to challenge closure of courtroom and records).

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B. Gag orders on the press

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C. Gag orders on participants

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D. Interviewing judges

There is no prohibition in Wisconsin law on interviewing judges.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

See Wis. Stat. § 134.90(b) (Uniform trade secrets act):

PRESERVATION OF SECRECY. In an action under this section, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting a protective order in a discovery proceeding, holding an in-camera hearing, sealing the record of the action and ordering any person involved in the action not to disclose an alleged trade secret without prior court approval.

See also Wis. Stat. § 227.46(7)(a) (trade secrets in administrative hearings):

Notwithstanding any other provision of law, the hearing examiner presiding at a hearing may order such protective measures as are necessary to protect the trade secrets of parties to the hearing.

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B. Cameras and other technology in the courtroom

See Wis. Supreme Court Rule (“SCR”) 61.03:

(1) Except as otherwise provided in sub. (2), 3 television cameras, each operated by one person, and 3 still photographers, each using not more than two cameras, are authorized in any court proceeding. Priority consideration shall be extended to one the three cameras to televise an entire proceeding from beginning to end.

(2) The trial judge may authorize additional cameras or persons at the request of the media coordinator or may limit the number of cameras if circumstances permit the increase or require the limitation.

(3) One audio system for radio broadcast purposes is authorized in any court proceeding.Audio pick up for all media purposes shall be made through any existing audio system in the court facility, if practical.  If no suitable audio system exists in the court facility, microphones and related wiring shall be as unobtrusive as possible.

See SCR 61.02(1):

The Wisconsin freedom of information council shall designate for each judicial administrative district a coordinator who shall work with the chief judge of the judicial administrative district and the trial judge in a court proceeding in implementing this chapter.

See SCR 61.02(2):

If possible, the trial judge shall be given notice, at least 3 days in advance, of the intention of the media to bring cameras or recording equipment into the courtroom. In the discretion of the trial judge, this notice rule may be waived if cause for the waiver is demonstrated.

See SCR 61.11:

(1) A trial judge may for cause prohibit the audio recording and the photographing of a participant with a film, videotape or still camera on the judge’s own motion or on the request of a participant in a court proceeding.

(2) Individual jurors shall not be photographed, except in instances in which a juror or jurors consent.

See also State v. Wakeman, 2008 WI App 148, 314 Wis. 2d 260, 757 N.W.2d 850 (unpublished) (Defendant presented no evidence of cause to prohibit cameras in courtroom); State v. D’Acquisto, 121 Wis. 2d 697, 359 N.W.2d 181 (1984) (unpublished) (no right to photograph jurors).

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C. Tips for covering courts in the jurisdiction

Each of Wisconsin’s 72 counties has its own circuit or trial court with at least one judge. Wis. Stat. § 753.06; see Wis. Stat. § 753.03:

The circuit courts have power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings unless exclusive jurisdiction is given to some other court; and they have all the powers, according to the usage of courts of law and equity, necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration of justice, and to carry into effect their judgments, orders and other determinations, subject to review by the court of appeals or the supreme court as provided by law.

Wisconsin has a single, unified court of appeals with four geographic districts.  Wis. Stat. § 752.11; see Wis. Stat. § 752.31(1) (“Except as otherwise provided in this action, the court of appeals shall sit in panels of three judges to dispose of cases on their merits.”); see also Wis. Stat. § 808.03:

(1) APPEALS AS OF RIGHT. A final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more parties, whether rendered in an action or special proceeding ….

(2) APPEALS BY PERMISSION. A judgment or order not appealable as a matter or 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 ….

Wisconsin has a single supreme court with seven justices. Wis. Const. art VII, § 4; see Wis. Stat. § 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."

The Wisconsin Supreme Court also may hear original actions, pursuant to Wis. Stat. § 809.70, though it is exceptionally rare. Finally, the supreme court may directly review the judgment or order of a trial court either when the court of appeals certifies the appeal to the supreme court, pursuant to Wis. Stat. § 809.61, or when a party petitions to bypass the court of appeals, pursuant to Wis. Stat. § 809.60.

All Wisconsin judges are elected in Spring, non‑partisan elections.  If a judge at any level retires or passes away during her term, the Governor has the right to appoint a new judge until there is time for an election.

The Director of State Courts is the administrative head of the Wisconsin court system.  His offices are in Madison, in the same suite as the administrative staff for the Wisconsin Supreme Court and Court of Appeals.  He can be reached at (608) 266‑6820.  The website for Wisconsin’s courts is www.wicourts.gov. The dockets for all Wisconsin state court cases are available at wcca.wicourts.gov.  Only participants in the actions can see pleadings on that site. Members of the news media and the public may request copies of pleadings from the clerk of the specific court where the case is venued.  Transcripts of proceedings are available for a fee from each judge’s court reporter.

 

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