State ex rel BILDER v. DELAVAN TP.,                           112 Wis.2d 539 (1983)                  LOGICAL PAGES BELOW 334 N.W.2d 252                         539 545 549 553 557                                        542 546 550 554 558                                        543 547 551 555 559                                        544 548 552 556 560
_________________________________________________________________ STATE of Wisconsin ex rel. Alan BILDER,      Petitioner-Appellant, v. The TOWNSHIP OF DELAVAN, a municipal corporation of the State of Wisconsin, Edward J. Lindloff, Russell P. Jansen, Harold J. Dahlinger, Craig R. Craig, Richard F. Fuller, John O. Olson, Steven R. Wassel and their officers, agents and employees, Respondents, GAZETTE PRINTING Co. and Newspapers, Inc.,                  Intervenors-Respondents.                                                     Pages 539-560 _________________________________________________________________ Supreme Court No. 81-2182.     Argued 3/28/83.     Decided 6/1/83
APPEAL from an order of the Circuit Court for Walworth County,

Robert H. Gollmar, Reserve Circuit Judge. Affirmed.

For the appellant there was a brief by James A. Walrath and

Shellow, Shellow & Glynn, S.C., Milwaukee, and oral argument by

Mr. Walrath.

For the intervenors-respondents there was a brief by Richard R.

Grant and Wickhem, Consigny, Andrews & Hemming, S.C., Janesville,

and Robert A. Christensen, and Foley & Lardner, Milwaukee, and

oral argument by Mr. Christensen.


This is an appeal from an order of the circuit court for Walworth

county, Robert H. Gollmar, reserve circuit judge.  The circuit

court order permitted Gazette Printing Co. and Newspapers, Inc.

(the newspapers) to intervene in a suit brought by Alan Bilder,

police chief, against the Township of Delavan and several of

the town's officers, agents, and employees.

The newspapers' contested Bilder's motion to seal the pleadings

and documents he filed in the action.

In granting the motion to intervene the circuit court

also opened the file to public examination.

This court granted direct review of the order

upon certification of the court of appeals.

Sections 808.05(2), 809.61, Stats. 1981-82.

The court of appeals certified two issues:

(1)  did the circuit court err in permitting the newspapers

     to intervene in the pending action to gain access to

     documents which had been sealed by the circuit court;

(2)  did the circuit court err in rescinding its earlier order

     sealing the documents, thus opening the documents filed

     with circuit court in this case to public examination.
We hold that the circuit court did not err and therefore

affirm the circuit court's order.


The facts giving rise to this appeal are not in dispute.

The controversy between Alan Bilder, police chief for the

Township of Delavan, and the Delavan town board

dates back to the spring of 1981.

In May 1981 the town board held a series of nonpublic

meetings to discuss complaints against Bilder.

The town board suspended Bilder with pay pending

an investigation of the complaints.

The town board retained an attorney to investigate the charges

against Bilder, and the attorney filed a written report with

the town board on June 13, 1981, recommending that

the town institute removal proceedings.

On the basis of that report the town scheduled a public hearing

on the charges for August 17, 1981.

On August 11, 1981, Bilder filed a petition for a writ of

prohibition and mandamus in the circuit court for Walworth county

to compel the town board to reinstate him as police chief and to

enjoin the town from conducting a hearing on charges of alleged


The petition sets forth the chronology of events and alleges that

the town board's procedures in this case violated both the town

board's own procedures for removal of officials and the state's

open meetings law.

Bilder asserts that he had no other adequate remedy at law since

an appeal from an adverse decision after a hearing on the charges

would come too late to require the town to follow the law and to

prevent the dissemination of charges.

More than 300 pages of exhibits which had not been made public by

the town and apparently relate to the town board's investigation

of and meetings about Bilder are appended to the petition.
Bilder simultaneously filed a motion to seal the court file on

the ground that "the pleadings and exhibits contain reference to

allegations . . . which would be extremely damaging to [Bilder's]

character, reputation and future career in law enforcement if

made public."

The circuit court signed Bilder's proposed order

on the day he filed it.

That order sealed the "file" pending further order of the court,

restrained the town board from conducting any hearing on the

charges, and scheduled a hearing on Bilder's petition

for October 5, 1981.

Although the circuit court order refers to sealing the file,

apparently Bilder's petition is not under seal; only the

exhibits are in a sealed unopened envelope.

Within two weeks of the filing of the petition, Bilder and the

town board entered into a stipulation, agreeing that the town

board would rescind Bilder's suspension as police chief, that

the town board would be restrained from any further action which

might lead to Bilder's dismissal, and that the circuit court's

order dated August 11, 1981, sealing the pleadings and exhibits

would be made permanent, but that all orders and writs issued by

the circuit court may be made public by either party without

leave of court.

Although the record does not clearly indicate the sequence of

events, the parties agree that at the same time that Bilder and

the town board submitted to the circuit court a proposed order

approving their stipulation, Gazette Printing Co. filed a motion

to intervene in the action and to open the file.

Later, Newspapers, Inc., also sought to intervene

to open the file.

The circuit court heard oral argument on the newspapers' motion

to intervene and unseal the file in August 1981.

Apparently without reviewing the sealed documents, the circuit

court on October 24 granted the motions to intervene, rescinded

its order sealing the files, and refused to permit Bilder to

withdraw the exhibits annexed to his petition.
It stayed its order pending appeal.


The first question this court must decide is whether

the circuit court erred in permitting the newspapers

to intervene in the action as a matter of right.

Section 803.09(1), Stats.

1981-82,[fn1] the Wisconsin intervention statute, establishes a

four-part test that the proposed intervenor must meet:

(1)  timely application for intervention;

(2)  an interest relating to the property or transaction

     which is the subject of the action;

(3)  that the disposition of the action may as a practical matter

     impair or impede the proposed intervenor's ability to

     protect that interest; and

(4)  that the proposed intervenor's interest is not adequately

     represented by existing parties.
Bilder challenges the newspapers' intervention on two grounds: 

first, that the newspapers do not have an "interest relating to

the property or transaction which is the subject of the action,"

and, second, that the motion to intervene was not timely.

Bilder contends that the "subject of the action" is whether the

town board's investigation and disciplinary proceedings against

him were lawful; he urges that the newspapers' claimed right of

access to the court file is only a collateral issue, too remote

from the subject of the action to create a right of intervention.

The newspapers' stated interest in this action is

opening a court file to public examination.

The newspapers argue that the clear language of Section 59.14(1),

Stats. 1979-80, that every clerk of the circuit court

     "shall open to the examination of any person all books and

     papers required to be kept in his or her office and permit

     any person so examining to take notes and copies of such

     book, records, papers or minutes . . ."

creates a judicially enforceable right to secure access to books

and papers filed in circuit court actions in the office

of the clerk of circuit court.

This court has recognized that newspapers can enforce this public

right because they qualify as persons who properly come under

the umbrella of the Wisconsin statutes providing rights

of examination of public records.

State ex rel. Journal Co. v. County Court,

 43 Wis.2d 297, 308,

168 N.W.2d 836 (1969).

We conclude that the newspapers' interest in opening the court

file is a legally protected interest under Section 59.14 and

that the issue raised by the newspapers relates to the

transaction which is the subject of the Bilder action.

Even though the issue of the sealing or opening of the file

was not the main objective of the Bilder action, Bilder

made the issue important when he moved to seal the

court file on the day he filed his action and

when he made the permanent sealing of the

file a condition of the stipulation

dismissing the suit.
The question remains whether the newspapers' legally

protected interest is sufficiently related to the

transaction which is the subject of the action to justify the

newspapers' intervention in this case as a matter of right.

Neither the statutes nor Wisconsin case law defines the

sufficiency of the "interest relating to the property or

transaction which is the subject of the action"

necessary to establish a right of intervention.

Because Section 803.09(1) is based on Rule 24 (a)(2) of the

Federal Rules of Civil Procedure, we look to cases and

commentary relating to Rule 24 (a)(2) for guidance in

interpreting Section 803.09(1), Stats. 1981-82.

The federal courts and the commentators have not been able to

derive a precise test for determining which type of interest is

sufficient to allow a party to intervene as a matter of right.

See 3B Moore's Federal Practice par. 24.07[2] (1982);

7A Wright and Miller, Federal Practice and Procedure:

Civil Section 1908 (1972); Blake v. Pallan,

554 F.2d 947, 952 (9th Cir. 1977).

The various federal courts have differed in their approaches.

Some appear to verbalize the sufficiency of interest factor

as in part a question of standing or as requiring a "direct,

substantial, legally protectable interest in the proceedings."

See e.g., Hobson v. Hansen, 44 F.R.D. 18, 24 (D.C. Cir. 1968);

Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1124

(5th Cir. 1970), cert. denied sub nom.

Trefina A.B. v. United States,

400 U.S. 878 (1970);

United States v. Perry County Bd. of Educ.,

567 F.2d 277, 279 (5th Cir. 1978);

Piambino v. Bailey,

610 F.2d 1306, 1321 (5th Cir. 1980), cert. denied,

449 U.S. 1011 (1980);

3B Moore's Federal Practice par. 24.07(2),

at 24-57 to 24-59 (1982);

7A Wright and Miller, Federal Practice and Procedure:

Civil Section 1908, at 503-06 (1972);

Kaplan, Continuing Work of the Civil Committee:

1966 Amendments of the Federal Rules of Civil Procedure (I),

81 Harv. L. Rev. 356, 405 (1967).
Other courts have viewed the interest test for

intervention more broadly.

Rosebud Coal Sales Co. v. Andrus,

644 F.2d 849, 850 n. 3 (10th Cir. 1981);

Shapiro, Some Thoughts on Intervention Before Courts,

Agencies and Arbitrators, 81 Harv. L. Rev. 721, 727 (1968).

We agree with the broader, pragmatic approach

to intervention as of right.

In deciding whether to allow a party to intervene as a matter of

right, the court should view the interest sufficient to allow the

intervention practically rather than technically.

United States v. Allegheny-Ludlum Indus.,

517 F.2d 826, 841 (5th Cir. 1975), cert. denied,

425 U.S. 944 (1976).

The court measures the sufficiency of the interest by focusing on

the facts and circumstances of the particular case before it as

well as the stated interest in intervention and analyzes these

factors against the policies underlying the intervention statute.

Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967);

Rosebud Coal Sales Co. v. Andrus,

644 F.2d 849, 850 (10th Cir. 1981).

The intervention statute attempts to strike a balance

between two conflicting public policies.

The original parties to a lawsuit should be allowed to conduct

and conclude their own lawsuit; persons should be allowed to

join a lawsuit in the interest of the speedy and economical

resolution of controversies.

Atlantis Devel. Corp. v. United States,

379 F.2d 818, 824 (5th Cir. 1967);

United States v. City of Jackson,

519 F.2d 1147, 1150-51 (5th Cir. 1975);

Clausen and Lowe, The New Wisconsin Rules of Civil Procedure,

Chapters 801-803, 59 Marq. L. Rev. 1, 108 (1976).

Courts using the pragmatic, policy-based approach thus view

the interest test as

     "primarily a practical guide to disposing of lawsuits

     by involving as many apparently concerned persons as

     is compatible with efficiency and due process."
Nuesse v. Camp,

385 F.2d 694, 700 (D.C. Cir. 1967).

As Chief Judge Bazelon wrote in

Smuck v. Hobson,

408 F.2d 175, 179-80 (D.C. Cir. 1969):

     "The decision whether intervention of right is warranted

     thus involves an accommodation between two potentially

     conflicting goals:

          to achieve judicial economies of scale by resolving

          related issues in a single lawsuit, and

          to prevent the single lawsuit from becoming

          fruitlessly complex or unending.

     Since this task will depend upon the contours of the

     particular controversy, general rules and past decisions

     cannot provide uniformly dependable guides. . . .  [T]he

     [interest] requirement should be viewed as a prerequisite

     rather than relied upon as a determinative criterion for


     If barriers are needed to limit extension of the right

     to intervene, the criteria of practical harm to the

     applicant and the adequacy of representation by

     others are better suited to the task.

     If those requirements are met, the nature of his 'interest'

     may play a role in determining the sort of intervention

     which should be allowed  whether, for example, he should

     be permitted to contest all issues, and whether he should

     enjoy all the prerogatives of a party litigant."

The decision to allow or deny intervention as of right regarding

the sufficiency of interest is a question of law.

Therefore we review the circuit court's decision de novo.

United States v. Allegheny-Ludlum Indus.,

517 F.2d 826, 841 (5th Cir. 1975), cert denied,

425 U.S. 944 (1976);

Shreve, Questioning Intervention of Right  

Toward a New Methodology of Decisionmaking,

74 Nw. U.L. Rev. 894, 901 (1980).

We look, as we have said, at the facts and circumstances of this

case against the background of the policies underlying the

intervention rule.

We conclude, as did the circuit court, that the newspapers

have a right to intervene in this case.

The newspapers have a protectable legal interest in opening

the documents to public examination; the sealing of the

documents is a significant issue in the lawsuit.
The parties agree that the newspapers could have initiated

a separate mandamus action against the clerk of circuit

court to order the clerk to open the records.

Thus intervention here furthers judicial administration since

intervention allows a final decision on a key issue to be reached

in a single lawsuit rather than having multiple lawsuits and

multiple judicial decisions on the same subject.[fn2]

The intervenors' claim would not make the Bilder

lawsuit complex or unending.

Bilder's second objection to the intervention is that the motions

to intervene were not "timely" since the original parties had

submitted a settlement agreement to the circuit court

contemporaneously with the newspapers' motions to intervene.

We find little merit in this contention.

There is no precise formula to determine whether

a motion to intervene is timely.

The question of timeliness must necessarily be left

to the discretion of the circuit court.

McDonald v. E.J. Lavino Co.,

430 F.2d 1065, 1074 (5th Cir. 1970);

Stallworth v. Monsanto Co.,

558 F.2d 257, 263 (5th Cir. 1977).

The critical factor is whether in view of all the circumstances

the proposed intervenor acted promptly.

United Airlines v. McDonald,

432 U.S. 385, 395-96 (1977).

A second factor is whether the intervention will prejudice

the original parties to the lawsuit.

3B Moore's Federal Practice par. 24.13,

at 24-154 to 24-157 (1982).

The Gazette Printing Co. moved to intervene within nine

days after the action was filed and at the same time

the parties proposed to seal the files permanently.
The newspapers' failure to apply for intervention at an earlier

time did not harm or prejudice any party to the litigation.

Even though the parties had formulated a stipulation to settle

the lawsuit, the circuit court had not yet considered or

approved it; thus, the original action was still

pending at the time of intervention.

We conclude that intervention was both

proper and timely in this case.


We now consider the substantive issue of law raised by the

newspapers:  whether the circuit court erred in rescinding

its earlier order sealing the file, thus opening the

exhibits filed in this case to public examination.

As we stated earlier, the newspapers base their claim on their

reading of Section 59.14(1), Stats. 1979-80, which provides

that records in the office of the clerk of the circuit

court shall be open for public examination:

     59.14 Offices where kept; when open.

     59.14(1)  Every sheriff, clerk of the circuit court,

               register of deeds, county treasurer, register of

               probate, county clerk and county surveyor shall

               keep his or her office at the county seat in the

               offices provided by the county or by special

               provision of law; or if there is none, then at

               such place as the board directs.

               The board may also require any elective or

               appointive county official to keep his or her

               office at the county seat in an office to be

               provided by the county.

               All such officers shall keep their offices open

               during the usual business hours each day, Sundays

               excepted, but the board may permit the officers

               to close their offices on Saturday or on legal

               holidays for such time as the board directs.

               With proper care, the officers shall open to the

               examination of any person all books and papers

               required to be kept in his or her office and

               permit any person so examining to take notes

               and copies of such books, records, papers or

               minutes therefrom except as authorized under

               Section 19.59(3)(d)."
Bilder claims that the documents submitted with his petition

should not be categorized as court documents maintained by the

clerk of circuit court under Section 59.14(1), but should retain

their status as town board records which are governed by Section

19.21(1), (2), Stats. 1979-80. Section 19.21, 1979-80, is similar

to Section 59.14(1) in providing for public examination of

records, but the two statutes govern different public offices and

have been given different interpretations by this court.

Section 19.21(1), (2) provides:

     19.21 Custody and delivery of official property and records.

     19.21(1)  Each and every officer of the state, or of any

               county, town, city, village, school district, or

               other municipality or district, is the legal

               custodian of and shall safely keep and preserve

               all property and things received from his

               predecessor or other persons and required by law

               to be filed, deposited, or kept in his office, or

               which are in the lawful possession or control of

               himself or his deputies, or to the possession or

               control of which he or they may be lawfully

               entitled, as such officers.

     19.21(2)  Except as expressly provided otherwise, any person

               may with proper care, during office hours and

               subject to such orders or regulations as the

               custodian thereof prescribes, examine or

               copy any of the property or things

               mentioned in subsection 19.21(1). . .

This court has distinguished Section 59.14(1) from Section 19.21,

concluding that Section 19.21, unlike Section 59.14(1),

is a statement of the common law rule that public

records are open to public inspection.

Since Section 19.21 is a statement of the common law, it has been

interpreted by this court as embodying the common law limitations

on the public's access to public records.

International Union v. Gooding,

251 Wis. 362, 372,

29 N.W.2d 730 (1947);

State ex rel. Youmans v. Owens,

 28 Wis.2d 672, 685a,

139 N.W.2d 241 (1966) (rehearing).
When the court determines whether the record covered by

Section 19.21 is to be sealed, the court must balance

the harm to the public interest from public examination

of the records against the benefit to the public interest

from opening these records to examination, giving much weight

to the beneficial public interest in open public records.

State ex rel. Youmans v. Owens,

 28 Wis.2d 672, 681-83,

137 N.W.2d 420 (1965);

Beckon v. Emery,

 36 Wis.2d 510, 516,

153 N.W.2d 501 (1967);

State ex rel. Journal Co. v. County Court,

 43 Wis.2d 297, 305, 168 N.W.2d 836 (1969);

Newspapers, Inc. v. Brier,

 89 Wis.2d 417, 427,

279 N.W.2d 179 (1979).

In contrast to this balancing approach under Section 19.21,

we concluded in

State ex rel. Journal Co. v. County Court,

 43 Wis.2d 297, 308,

168 N.W.2d 836 (1969),

that Section 59.14 is a legislative declaration granting

those persons who properly come under its umbrella

     "an absolute right of inspection subject only to

      reasonable administrative regulations. . . ."

Section 59.14 reflects a basic tenet of the democratic system

that the people have the right to know about operations of their

government, including the judicial branch, and that where public

records are involved the denial of public examination is contrary

to the public policy and the public interest.

The courts, whose obligation it is to ensure that the executive

and legislative branches of government remain open to public

scrutiny, must abide by the same high standards

they prescribe for others.

State ex rel. Journal Co. v. County Court,

 43 Wis.2d 297,

168 N.W.2d 836 (1969).

We conclude that the exhibits sought to be sealed in this case

are records that the legislature intended to come under the

provisions of Section 59.14(1).

Once the exhibits became a part of the pleadings in the circuit

court action they became papers required to be kept in

the office of the clerk of circuit court.
Sections 801.02 and 801.14(4), (5) provide that pleadings

required to be served upon a party shall be filed with

the court and that filings with the court shall be

made by filing with the clerk of circuit court.

The clerk must file and keep all papers properly deposited

with him or her in every action or proceeding.

Sections 59.39(1), 59.395(1), Stats. 1979-80.

Our inquiry does not stop, however, with categorizing the

documents in issue here as falling within Section 59.14(1).

Although we stated in the Journal Company case that a person

requesting to examine documents under Section 59.14 has an

absolute right of examination, we have also recognized,

as the newspapers recognize, that the "absolute right"

rule is not without exception.

As the newspapers' briefs correctly point out, there are at least

two recognized exceptions to the "absolute right" of public

examination set forth in Section 59.14(1).

The first exception allows for closing documents to public

examination when there is a statute authorizing the

sealing of otherwise public records.

Such a clear public policy pronouncement takes

precedence over Section 59.14.

Bilder argues that if the documents fall within Section 59.14,

they are covered by an exception set forth in Section (Rule)

804.01(3)(a), Stats. 1979-80, which permits restriction of public

access to certain material obtained through discovery.  We reject

his argument since this provision relates solely to discovery and

does not govern sealing exhibits annexed to pleadings.[fn3]
The second exception to the absolute rule set forth in

Section 59.14(1) is that disclosure must yield if

it infringes on a constitutional right.

Bilder claims that disclosure of the exhibits would deprive

him of his state constitutional right to a remedy

     "for all injuries, or wrongs which he may receive

     in his person, property or character."

Article I, Section 9, Wisconsin Constitution.

He would have us apply

State ex rel. Ampco Metal, Inc. v. O'Neill,

273 Wis. 530,

 78 N.W.2d 921 (1956),

in which we held that where disclosure of alleged trade secrets

during a trial would deny the plaintiff a remedy for the wrong

it sought to prevent, the circuit court could allow in camera

testimony on the issue.

Our holding in Ampco does not govern this case.

In an action to protect trade secrets the value of the trade

secret  and consequently the value of the action  depends on

keeping secret the trade secret, and the plaintiff's case rests

on the claim of a legal right to have the matter kept secret.

Disclosure in this case, unlike in Ampco, will not

destroy the basic cause of action.

Bilder's suit was to compel the town board to follow

the prescribed procedures for disciplinary actions.

Bilder's action survives whether the court

file is open or closed.

While Bilder may have a personal interest in keeping the charges

against him closed to the public, he cites no authority that he

has a legal right to have charges against him brought in

closed proceedings or kept confidential in order

to protect his reputation.

We conclude that Bilder's case does not fall

within the second exception.
Where court records are concerned, there may be a third

exception to the Section 59.14(1) "absolute right"

of examination.

The circuit court under its inherent power to preserve and

protect the exercise of its judicial function of presiding

over the conduct of judicial proceedings has the power to

limit public access to judicial records when the

administration of justice requires it.

In Ampco, supra, 273 Wis. at 539, we held that the statutes

requiring judicial proceedings to be public, Sections 757.14,

757.70(1), Stats. 1979-80, would be unconstitutional if they

were construed to deprive the courts

     "of their inherent power to take certain evidence in camera

     where the rights of parties, or witnesses, could not

     otherwise be protected."

This court concluded that Ampco involved one of those rare

situations where justice could not be administered without

holding in camera proceedings, and we commanded the circuit court

to take all evidence as to the nature of Ampco's claimed

trade secrets in camera and to seal the record

of the evidence so taken.

Similarly, this court in the Journal Company case, supra,

43 Wis.2d at 311-12, discussing Section 59.14,

recognized that the inherent power of the courts

     "in many respects goes beyond those conferred by statute."

But in the Journal Company case the court was not

persuaded that the court's inherent authority

     "exists with respect to withholding a decision."

Indeed the court said in the Journal Company that the circuit

court had an inherent obligation to promptly make its

decisions available to the public.  Id. at 312.

To overcome the legislatively mandated policy favoring open

records and to persuade the circuit court to exercise

inherent authority, the party seeking to close court

records bears the burden of demonstrating, with articularity,

that the administration of justice requires that

the court records be closed.
If the party seeking closure sufficiently demonstrates

the need to close the records, the court should examine

the documents in camera to determine whether in light of

the reasons specified for closing the documents, the

administration of justice requires restricting public access.

Even then an impoundment order is appropriate only when

there is no less restrictive alternative available.

The circuit court initially, and the appellate court on review,

must decide as a matter of law whether the reasons asserted for

closure are sufficient.

As grounds for closing the file in this case Bilder asserts

a public interest in protecting citizens' reputations and

claims generally that disclosure of the contents of the

documents would be  

     "extremely damaging to [his] character, reputation,

      and future career in law enforcement."

Even if Bilder could persuade us that there is a legal guarantee

of present enjoyment of reputation or a general legislative

policy to protect a citizen's general interest in his or

her reputation, we do not find Bilder's generally asserted

interest sufficient to overcome the public policy embodied

in Section 59.14 or to support the exercise of the court's

inherent power.

Any use of the judicial process opens information about a

party's life to the public's scrutiny, and such

information may be damaging to reputation.

Furthermore, Bilder is not an ordinary citizen.

He is a public official subject to close public scrutiny.

Gertz v. Robert Welch, Inc.,

418 U.S. 323, 344 (1974);

Garrison v. Louisiana, 379 U.S. 64, 77 (1964).

The documents in issue apparently contain information relating

directly to Bilder's professional conduct as police chief.

By accepting his public position Bilder has, to a large extent,

relinquished his right to keep confidential activities directly

relating to his employment as a public law enforcement official.

The police chief cannot thwart the public's interest in his

official conduct by claiming that he expects the same kind

of protection of reputation accorded an ordinary citizen.
Even if Bilder could explain why his reputation interest

should be protected, he does not explain how opening the

documents in issue here will have an incremental effect

on his reputation when the public must already know, even

by virtue of proceedings he pursues in this court, that he

has been suspended as police chief and that he has been

charged with misconduct or questionable conduct.

Bilder further argues that Section 19.85(1)(b), (f), Stats.

1979-80, permitting closure of governmental meetings relating

to certain personnel matters, sets forth a legislative policy

to close such personnel records to protect the employee's

reputation and justifies sealing the court files in this case.

In Section 19.35 1981-82, the legislature has declared that the

personnel and other exemptions to the open meeting law are

indicative of public policy and that the exemptions may be

used as grounds for denying public access to public records

under Section 19.21 1979-80 (now Section 19.35 1981-82).

As the newspapers correctly point out, the laws regulating open

meetings (Section 19.81 et seq.) and the ethics codes for local

governmental officials (Section 19.59(3)(d) 1981-82), empower,

but do not require, the governmental unit to close certain

proceedings relating to personnel to the public.

Thus, even if we were to say that Sections 19.35 and 19.81

1981-82, apply to this case, and we do not say they do,

they would not aid Bilder.

The legislature has provided that the governmental unit, not the

individual, has the power to open or close meetings and it is the

legal custodian of the record, not the citizen, who has the right

to have the record closed if the custodian makes a specific

demonstration that there is a need to restrict public access

at the time the request to inspect is made.

Although the town did join the stipulation to close the court

records, it is Bilder, not the town, who is fighting in this

proceeding to keep the documents closed.
Bilder also generally asserts that third parties may be

harmed by disclosure of some of the documents.

He makes these assertions for the first time on appeal.

He does not sufficiently describe the persons who may be hurt

or how these persons may be hurt, and Bilder does not show

that these persons are unable to vindicate whatever

rights they may have.

Nor would Bilder's assertions support sealing

all the documents in toto.

We determine that Bilder has not made the necessary minimal

showing that the administration of justice requires closure

of the records in this case; therefore, we do not remand to

the circuit court to examine the documents in camera to

determine whether the administration of justice requires

restricting access to the documents in light of the

reasons specified for such restriction.

We need not, and do not  decide whether a circuit court may

ever use its inherent power to seal court documents permanently.

In this case, Bilder has failed to overcome the legislative

policy set forth in Section 59.14 that the denial of public

examination of a court record is contrary to the public policy

and the public interest favoring open court records.

Bilder had the obligation, as the party seeking to close court

records, to demonstrate that the administration of justice

requires denying public access to court records and

to state with specificity the reasons for closure.

Actual, as opposed to hypothetical, factors must be set forth to

demonstrate that the administration of justice requires closure.

It is not for the circuit court or an appellate court to

hypothesize or consider reasons for closing court

records not asserted by the interested person.

We conclude that Bilder has not shown that he comes within the

two exceptions to the absolute disclosure rule of Section 59.14

or that the circuit court should have exercised its inherent

power to close the court file.

Because we conclude that the circuit court was correct

in permitting public examination of the records in this case,

we need not discuss the newspapers' asserted state or federal

constitutional rights of access.
We recognize, however, that Section 59.14(1) furthers many

of the same interests which underlie the first amendment

to the federal Constitution and art. I, Section 3,

of the Wisconsin constitution.

For the reasons set forth, we affirm the order of the

circuit court unsealing the documents and not

permitting Bilder to remove the exhibits

from the office of the clerk of circuit court.

By the Court.  Order affirmed.

[fn1]     Section 803.09(1), Stats. 1981-82,

          provides as follows:

          803.09 Intervention.

          803.09(1) Upon timely motion anyone shall be permitted

                    to intervene in an action when the movant

                    claims an interest relating 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.

          Section 803.09(2) 1981-82, provides for

          permissive intervention:

          803.09(2) Upon timely motion anyone may be permitted to

                    intervene in an action when a movant's claim

                    or defense and the main action have a

                    question of law or fact in common.

                    When a party to an action relies for ground

                    of claim or defense upon any statute or

                    executive order or rule administered by a

                    federal or state governmental officer or

                    agency or upon any regulation, order, rule,

                    requirement or agreement issued or made

                    pursuant to the statute or executive order,

                    the officer or agency upon timely motion may

                    be permitted to intervene in the action.

                    In exercising its discretion the court shall

                    consider whether the intervention will unduly

                    delay or prejudice the adjudication of the

                    rights of the original parties.

[fn2]     Under an intervention of right statute identical to

          Section 803.09(1), Stats. 1981-82, the Delaware Supreme

          Court judged a newspaper's right of access to court

          records to be "clearly substantial, albeit collateral

          to the merits of the divorce action, " and

          "intervention, rather than a new lawsuit, such as

          mandamus, " was considered to be the "most expeditious

          and best method."

          C.v.C., 320 A.2d 717, 720 (Del. 1974).

[fn3]     Section 804.01(3)(a), Stats. 1979-80, permits a court

          to issue orders sealing depositions or permitting

          confidential discovery "which justice requires to

          protect a party or person from annoyance,

          embarrassment, oppression, or undue burden or expense."

          Closing discovery documents gives rise to policy

          considerations which may differ from those involved

          in closing pleadings and annexed documents.

          Courts have expressed conflicting views as to the

          standards to be used in evaluating protective

          orders restricting public examination of

          documents resulting from discovery.

          In Re Halkin,

          598 F.2d 176 (D.C. Cir. 1979);

          In Re San Juan Star Co.,

          662 F.2d 108 (1st Cir. 1981);

          Koster v. Chase Manhattan Bank,

          93 F.R.D. 471 (S.D.N.Y. 1982);

          Rhinehart v. Seattle Times Co.,

          98 Wash. 2d 226, 654 P.2d 673 (1982).