State ex rel BILDER v. DELAVAN TP.,
112 Wis.2d 539 (1983) LOGICAL PAGES BELOW
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DECISIONS AND OPINIONS CITING BILDER
STATE of Wisconsin ex rel. Alan BILDER,
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.,
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
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.
SHIRLEY S. ABRAHAMSON, J.
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
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 (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
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 Ä 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 Ä
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
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
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 Ä and consequently the value of the action Ä 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"
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
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 Ä 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. Ä Order affirmed.
[fn1] Section 803.09(1), Stats. 1981-82,
provides as follows:
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
Section 803.09(2) 1981-82, provides for
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).
DECISONS AND OPINIONS citing BILDER: