STATE EX REL. JOURNAL CO. v. COUNTY COURT,

43 Wis.2d 297 (1969)

168 N.W.2d 836                     CONTENTS






STATE EX REL.  JOURNAL COMPANY, Respondent, v. COUNTY COURT OF RACINE COUNTY, the Honorable Leander J. Foley, Jr., presiding, Appellant.

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Supreme Court No. 291.
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APPEAL from an order of the circuit court for Racine

county:  HOWARD J. DUROCHER, Circuit Judge.  Affirmed.



This is an appeal from an order entered on October 4,

1968, by the circuit court for Racine county sustaining

the demurrer of The Journal Company to the return of

the county court to The Journal Company's petition for

mandamus.
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This suit for mandamus arose out of The Journal

Company's demand to inspect Judge LEANDER J. FOLEY'S

decision in the case of Bola v. Bola.



This demand was refused by both Judge FOLEY and the

clerk of circuit court, with whom the decision was

deposited.



The facts of the case are set forth in the amended

return, which, for the purposes of appeal, is to be

considered a verity.  State ex rel. Potrykus v. Schinz

(1922), 176 Wis. 646, 647, 187 N.W. 743.  Moreover, the

facts are not in dispute.



The case of Renate E. Bola v. Walter Errol Bola was

brought in the family branch of the Racine county court

with Circuit Judge LEANDER J. FOLEY, JR., of the second

circuit located in Milwaukee county, presiding.



The purpose of the suit was to determine the custody of

the minor child of the parties.



Renate E. Bola was a German national, and Walter E.

Bola was a United States citizen.



The trial attracted national and international

attention, and although portions of the record show

testimony and evidence approaching the scandalous, the

news media were allowed the usual coverage facilities,

and the public, except for minors, were permitted to

attend the trial at all times.



The record has been transcribed and is available for

inspection by the general public.



The respondent, The Journal Company, reported the

proceedings through its newspaper and television

outlets.



Prior to the conclusion of the trial, Renate Bola took

her son and left the United States for Germany, where,

presumably, they are at the present time.



On or about March 13, 1968, Judge FOLEY rendered what

is conceded by both parties to be a decision consisting

of his findings and conclusions and determination in

the usual narrative form of a memorandum decision or

opinion and included therein rationale for his

decision.
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The decision asked that counsel submit formal findings

of fact and conclusions of law for approval.



Judge FOLEY deposited the decision with the clerk and

ordered that the clerk impound it.



Copies of the decision were made available to the

parties and their attorneys.



The Journal Company, through its attorneys, made oral

and written requests to both the clerk of court and

Judge FOLEY that the decision be made available for

examination and copying.



The reasons for impounding the decision appear in

appellant's return.



Therein it is stated that the decision was impounded in

the interests of the child and in the interests of the

public, because there are numerous cases pending

between Germany and the United States nationals of this

nature, and that the record of this case had been

transmitted via the State Department to the German

judge who had previously issued an order regarding the

custody of the minor.





Upon the refusal to make the decision available, The

Journal Company commenced an action for mandamus to

compel the county court to produce the record.[fn1]





The county court made its return, to which The Journal

Company demurred, claiming that, upon the admitted

facts, the court must produce the document.



The circuit court for Racine county, holding that the

county court had no discretionary power to withhold its

decisions, sustained the demurrer, but gave the county

court leave to plead over.
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In its decision the circuit court pointed out that it

had read the impounded decision and found it well

reasoned and couched in discreet terms.



It is from this order that the county court

brings its appeal.






[fn1] While the mandamus action was directed to the county court of Racine county, Judge LEANDER J. FOLEY, JR., presiding, the officer who now has custody of the decision is the clerk of circuit court. No objection has been raised by appellant on the basis that the writ has been misdirected, nor would we find such objection sustainable, for it is clear that the term, "court," refers not to the judge alone but embraces within its scope the officers exercising the function of the court. As we said in State ex rel. Taylor v. Board of Supervisors of the Town of Delafield (1885), 64 Wis. 218, 221, 222, 24 N.W. 905:      "The peremptory writ is essentially a writ of      the court, and not a mere order signed by the      judge.      It must be issued as other writs are issued,      under the seal of the court, tested in the      name of the judge, signed by the clerk. . ." For the appellant there were briefs by Foley, Capwell, Foley & Seehawer, and oral argument by Rex Capwell and Robert Anker Christensen, all of Racine. For the respondent there was a brief by Foley, Sammond & Lardner and James P. Brody, John R. Collins, and Robert A. Christensen, all of Milwaukee, and oral argument by Mr. Collins and Mr. Christensen. HEFFERNAN, J. Recent Wisconsin cases have discussed and clarified the right of a member of the public to inspect the records or papers filed with, or kept by, a governmental agency or officer. State ex rel. Youmans v. Owens (1965), 28 Wis.2d 672, 137 N.W.2d 470, 139 N.W.2d 241, considered the demand of Henry A. Youmans, publisher of the Waukesha Freeman, to inspect the report of the city attorney's investigation of alleged police misconduct that was in the hands of the mayor, as statutory head of the police department. No specific statute referred to the right of the public or of any person or citizen to inspect police records. Petitioner relied upon Section 18.01, Stats., which provides in part: 18.01 Custody and delivery of official property and records. 18.01(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.
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18.01(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 may

          prescribe, examine or copy any of the

          property or things mentioned in Subsection

          18.01(1).



We therein held that Section 18.01, Stats., was a

restatement of the common law, and that this statute

expressed the state of the law in Wisconsin prior to

the adoption of Section 18.01 and was applicable to

all situations where the common law had not been

specifically altered by legislative enactment.



This line of reasoning was drawn from the earlier case

of International Union v. Gooding (1947), 251 Wis. 362,

29 N.W.2d 730, wherein the history of Section 18.01

was discussed.



Mr. Justice WICKHEM, writing for a unanimous court,

traced the history of Section 18.01(1)

and 18.01(2) and concluded:



     It is stated in the revisor's notes that this

     subsection "is believed to give expression to the

     general implied right of the public to consult

     public records."  In view of the presumption that

     a revisor's bill is not intended to change the law

     we conclude that this is the scope of the section.



     While it is possible to contend that the words are

     so clear as not to be subject to construction we

     are of the view that the common-law right of the

     public to examine records and papers in the hands

     of an officer has not been extended." (p. 372.)



For the determination in Gooding, it was not, however,

necessary to define the common law concerning

the right to inspect public documents.



When in Youmans, supra, reliance was placed upon

Section 18.01, Stats., to compel the production of the

report, it was necessary for this court to determine

the prior common law, of which Gooding found Section

18.01 to be declaratory.



Youmans pointed out that the right to inspect

public documents, stated under Section 18.01, Stats.,

was subject to all the limitations of that right at

common law.
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We adopted in Youmans, as an authoritative statement

of the common-law right to the inspection of public

documents, the statement of the Vermont court in

Clement v. Graham (1906), 78 Vt. 290, 63 Atl. 146.



The Vermont court said, at pages 315, 316:



     "We think it may be safely said that at common

     law, when not detrimental to the public interest,

     the right to inspect public records and public

     documents exists with all persons who have a

     sufficient interest in the subject-matter

     thereof to answer the requirements of

     the law governing that question."



In Youmans we set forth the procedure for a judicial

determination of whether, in cases governed by the

common law, specific harmful effect upon the public

interest outweighed benefits to be obtained by

following the general public policy favoring the right

of inspection of public documents and records.



This court pointed out that a refusal to permit

inspection on the grounds of public interest or welfare

must rest upon specifically stated reasons, whose

sufficiency was subject to judicial scrutiny in

accordance with stated guidelines.



Beckon v. Emery (1967), 36 Wis.2d 510, 153 N.W.2d 501,

followed the Youmans' rationale and ordered that a

mandamus issue directing the chief of police to permit

the inspection of an accident report.



We pointed out that the reasons given for withholding

the records Ä that they were "confidential" or release

would be "contrary to the public interest" Ä did not

constitute the specific reasons required by Youmans.



We concluded the Beckon v. Emery opinion stating:



     "In short, there is an absolute right to

     inspect a public document in the absence of

     specifically stated sufficient reasons to the

     contrary."  (p. 518.)



Thus, the Youmans and Beckon cases, both concerning

actions brought pursuant to Section 18.01, Stats.,

taken together, stand for the proposition that a right

to inspection of documents brought under that section

of the statutes is subject to the common-law limitation

that the inspection not be permitted if there is a

specific showing that the public interest would be

adversely affected.
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The rehearing in Youmans, page 685a, however, controls

the disposition of the instant case.



The rehearing pointed out that prior to the enactment

of Section 18.01, Stats., in 1917, as part of the

revisor's bill, there existed:



     ". . . certain statutes which authorized

     inspection of certain public records.



     There are many statutes that impose upon

     particular public officers the duty to keep

     certain records which evidence an express or

     implied legislative intent that such records be

     open to public inspection.



     With respect to public records of this category

     the common-law rule applied in the instant case

     would be inapplicable, and consequently the

     officer custodian thereof would have no right to

     refuse public inspection." (p. 685a.)



This statement in the Youmans rehearing is not dicta,

as contended by the appellant.



The very purpose of the per curiam opinion denying the

rehearing was to make the point that common law did

not control the legislative declarations of the

right of inspection that were antecedent to

Section 18.01, Stats.



These are statutory enactments of the right of

inspection independent and in derogation of the common

law that controlled the outcome of Youmans and Beckon.



The statement in the Youmans rehearing is authoritative

on the extent of the application of the common law.



It is the position of the respondent that its right to

inspection rests upon the provisions of Section 59.14,

Stats., which was antecedent to the 1917 passage of

Section 18.01 and is, hence, not limited by the test of

Youmans and Beckon that requires a judicial balancing

of the right of inspection against an assertion of

public interest in maintaining secrecy.
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If this is correct, the petitioner's right to

mandamus is absolute, and as we stated in Youmans the



     "officer custodian thereof would have no

     right to refuse public inspection."



Section 59.14(1), Stats., provides:



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 and county clerk shall keep his

          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 county board directs.





          The county board may also require any

          elective or appointive county official to

          keep his office at the county seat in an

          office to be provided by the county.



          All such officers shall keep such offices

          open during the usual business hours each

          day, Sundays excepted, and except that the

          county board of each county may permit said

          officers to close their offices on Saturday

          or on legal holidays for such time as the

          county board directs, and with proper care

          shall open to the examination of any person

          all books and papers required to be kept in

          his office and permit any person so examining

          to take notes and copies of such books,

          records, papers or minutes therefrom.



This very law then appearing in the statutes as Section

700, Rev. Stats. 1878, was construed by this court in

Hanson v. Eichstaedt (1887), 69 Wis. 538, 35 N.W. 30.

Then, as now, the statute included not only the duties

of the register of deeds but also the duties of the

clerk of circuit court with which we are concerned

herein.



Since their duties in regard to the right of public

inspection are defined by the same statute, the

construction given in Hanson as to the duties

of the register of deeds is equally applicable

to the clerk of circuit court.



Therein, this court held that "any person," with no

requirement that he have a special interest in the

subject matter of the document, had a right under the

statute to inspect and copy documents, subject to no

limitation other than those in the statute itself and:  

". . . the payment of fees when allowed, and such

reasonable supervision and control by such officer as

are essential to the convenient performance of his

duties, and the current business of the public."



Hanson, supra, page 547.
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In Hanson, the register of deeds, who resisted

the use and copying of the records, contended:



     ". . . that the right to inspect and copy

     public records is confined to those having

     some interest in the particular record sought

     to be inspected or copied, and does not

     extend to one seeking to do so from mere

     curiosity, or for his own private gain.





     Such seems to be substantially the rule at

     common law. . . . It is claimed that the same

     rule should be applied under our statutes."



Hanson, supra, page 541.



This claim was specifically rejected, and the statute

in Hanson, the same statute that respondent contends

is applicable here, was found to be a legislative

declaration independent and in substitution of

the common law.



This rationale was alluded to in the Gooding Case and

was specifically confirmed by the rehearing in Youmans.



We are satisfied that counsel for appellant

misunderstands the statements of Gooding and Youmans if

it is his position that the common-law rule remains

applicable to specific "right to know" statutes

exclusive of Section 18.01, Stats.



We thus conclude that the legislature has declared that

those persons who properly come under the umbrella of

Section 59.14, Stats, in demanding a public record from

the officers named therein have an absolute right of

inspection subject only to reasonable administrative

regulations as set forth in Hanson.



There need be no showing of any special interest as

required at common law, and, as specifically set forth

in that case, the term, "any person," that was selected

by the legislature was to be construed literally and

not subject to any common law or special meanings.



It found the statute to be plain and unambiguous.



It is clear that The Journal Company is "any person"

within that statutory category.



Section 990.01(26) provides that "Person" includes all

partnerships, associations and bodies politic and

corporate.
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Contrary to appellant's unsupported assertion,

this statute does not require that the person

seeking to inspect records be a citizen.



Even a cursory reading of Beckon and Youmans shows

that no such requirement is set forth therein.



Even though it be clear that prior decisions of this

court make it apparent that Section 59.14, Stats., is

independent of common law, the question remains whether

the mandamus action of The Journal Company is properly

founded upon that section of the statutes.



We believe that it is.



Section 270.33, Stats., which is applicable to all

courts of record provides:



270.33    Trial by court; findings, judgment.



          Except in actions and proceedings under ch.

          299, upon a trial of an issue of fact by the

          court, its decision shall be given in writing

          and filed with the clerk within 60 days after

          submission of the cause, and shall state

          separately the facts found and the

          conclusions of law thereon; and judgment

          shall be entered accordingly.



Section 59.395(1), Stats., provides:



59.395    Clerk of court; duties.



          The clerk of circuit court shall:



          (1) Keep court papers, books and records

              as specified in Section 59.39.



Section 253.30, Stats., provides that the clerk of

circuit court shall perform all the duties set forth in

Section 59.395 for the county court (except those

duties concerned with probate matters and the

Children's Code).



Section 59.39, Stats., provides that the

clerk of court shall:



(1)   File and keep all papers properly deposited

      with him in every action or proceeding.



These statutes read together lead to the conclusion

that the clerk of court is, under the statutory scheme,

the custodian of the records of the county court, and,

in this case of the impounded decision that was

placed in his hands.
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We place no credence, insofar as this action is

concerned, with the strained distinction urged by

appellant that the decision here has not been "filed."



The statute merely requires that there be an

examination of "books and papers required to be kept."



It is obvious that Section 270.33, Stats., requires the

decision to be "filed," and, hence, irrespective of the

term or conditions imposed upon its deposit by the

county judge, it is subject to inspection if it is in

the office and is required to be filed or kept there.



While the above statement controls the facts in this

case, it should be made clear, as we did in Youmans,

that the duty of an officer to produce records is not

confined only to those records that he is required to

keep but extends to other records in his custody that

may deal with his official duties.



Appellant also urges, since Section 247.19, Stats.,

permits the impounding of the record or evidence in a

case upon a written order of the court made in its

discretion in the interest of public morals, that,

therefore, in this case the decision can be impounded.



This does not follow, for the reference of Section

247.19 is to the evidence or record and has nothing

whatsoever to do with the impounding of a decision.



Furthermore, in this case, the record and testimony

were available to the public and no effort has been

made to impound them or to deny the public right of

inspection.



The appellant's argument is not supported by

Section 247.19, and its reasoning is not

persuasive as applied to this case.



Of course, the motive of the trial court in suppressing

the decision was not in the interest of public morals,

but rather in the interest of the child, to assure the

enforcement of the decision in the German courts by

avoiding a premature disclosure of the decision

before a discussion could be had with

appropriate German judges.
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The able trial judge in his excellent opinion stated:



     "Any international accord which may be reached

     will be of the greatest public interest and

     service and will make an inestimable contribution

     to the security and welfare of the children

     who are often helpless pawns or hostages

     to their parent's whims.



     The action in which the decision here under

     consideration was rendered is no doubt one of many

     most urgently demanding, on behalf of the children

     involved, some solution to bring stability and

     certainty into their disrupted lives.



     These, this court is well aware, were the

     considerations which constrained the court in the

     matter of Bola v. Bola to impound its decision

     lest it impair or damage the possibility of hope

     for the child's future.  They are considerations

     which could not fail to trouble an experienced

     compassionate Family Court Judge, and strongly and

     properly motivate him to seek to promote in any

     way within his power, the emotional tranquility of

     the child before him."



We agree with Judge DUROCHER'S analysis and of his

appraisal of the judge who tried the custody case.



However, we have been advised of no powers possessed by

any judge of this state to suppress a decision from the

public after it has been made available to the parties

thereto.



Whatever the motives of the county judge may have been,

and we acknowledge that they were of the highest

nature, they cannot supersede the clear public policy

pronouncements of the legislature that a decision must

be filed with the clerk of court and when, so filed,

it is subject to examination by "any person."



We are also satisfied that it is contrary to our

Anglo-American policies of judicial administration

to impound a decision of a court once the determination

has been made and filed.



While appellant argues that it is within the inherent

power of a court to withhold its decision from the

public while making its mandate known to the

parties, we have been cited no instance

of such exercise of power.



While we recognize the inherent power of the courts, in

many respects, goes beyond those conferred by statute,

we have been unable to find, and appellant has given

us, no authority in this jurisdiction to sustain his

point of view that such inherent authority exists with

respect to withholding a decision.
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Rather, we believe it an inherent obligation

of a court to promptly make its decisions

available to the public.[fn2]



We believe that the policy to be followed was

properly summarized in 21 C. J. Section,

Courts, pp. 415, 416, Section 223:



     "Justice requires that the public shall have

     free access to the opinions of the courts and

     it is against sound public policy to prevent

     such access. . . ."



While the statement appearing in Corpus Juris Secundum

quoted refers to appellate courts, we see no difference

between a trial court and a final appellate court in

its obligation to reveal its decisions.



In New York Post Corp. v. Leibowitz (1957),

2 N. Y. 2d 677, 163 N. Y. Supp. 2d 409,

143 N.E.2d 256, a newspaperman sought

a transcript of a judge's charge to a jury.



The New York Court of Appeals, in ordering that the

transcript be made public, relied upon particular

provisions of the New York Constitution, but pointed

out at page 684,



          "No other rule is conceivable in a

          society nurtured on freedom of

          discussion of matters of public

          interest."



This statement parallels the public and legislative

policy of the state of Wisconsin from its early

history, and any legislation should be examined

with the purpose, if possible, to effectuate

that policy and not to defeat it.



The courts have been the great repositories of

personal liberty, and their obligation is not

only to see that the conduct and performance

of executive and legislative officials is open to

public scrutiny, but to maintain for themselves the

high standards that they prescribe for others.
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It would ill behoove a court of this state to conclude

that it has the inherent right to impose its mandates

on the parties to an action, but to conceal those

mandates from the examination of the public.



While we recognize the exemplary purpose behind the

trial judge's order herein, we can think of no device

more subject to abuse, more conducive to a climate

favoring star chamber judgments, and more likely to

result in judicial caprice, than a mandate of this

court upholding the order impounding this decision.



While no ground appears that would permit appellant to

successfully plead over, we affirm the trial court's

order granting additional time to amend its return.



By the Court. Ä Order affirmed, with leave granted to

plead over within twenty days after the date of this

mandate.



In default of so doing, the writ of mandamus may issue

in the circuit court.



[fn2]



There are, of course, well recognized exceptions to the

rule of judicial disclosure, e.g., grand jury

testimony, the issuance of warrants prior to service,

and other exceptions as determined by the legislature.




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