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,
COUNTY COURT OF RACINE COUNTY,
the Honorable Leander J. Foley, Jr., presiding,
Supreme Court No. 291.
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
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
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
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
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
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.
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.
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
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.
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:
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.
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
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
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
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
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.
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
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.
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
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
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.
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
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.
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
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.
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
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.
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
In default of so doing, the writ of mandamus may issue
in the circuit court.
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.