IN MATTER OF ESTATES OF ZIMMER,
151 Wis.2d 122 (Ct.App. 1989)
442 N.W.2d 578 CONTENTS
IN the MATTER OF the ESTATES of
Sally Jo ZIMMER and Hans P. Zimmer, Deceased:
WISC-TV CHANNEL 3/MADISON,
The Capital Times Company, and
The Wisconsin Freedom of Information Council,
Michael MEWIS, Personal Representative
of the Estate of Sally Jo Zimmer and
Hans P. Zimmer and Peter Zimmer,
Court of Appeals No. 88-0390.
Submitted on briefs February 6, 1989.
Decided May 25, 1989.
APPEAL from an order of the circuit court for
Iowa county: JAMES P. FIEDLER, Judge.
Reversed and cause remanded with directions.
For the appellants the cause was submitted on the
briefs of Jonathan C. Aked and Linda M. Clifford,
and LaFollette & Sinykin, of Madison.
For the respondents the cause was submitted on the
brief of James W. Harris and Paula K. Doyle, and
Larkin, Jackson, Harris & Glass, S.C., of Dodgeville.
Before Gartzke, P.J., Dykman and Eich, JJ.
The Wisconsin Freedom of Information Council, the
Capital Times Company and WISC-TV (collectively,
the "news media") appeal from an order approving a
settlement in a probate proceeding and directing that
the terms and conditions of the settlement remain
The issue is whether Section 59.14 , Stats., which
requires clerks of circuit court and registers in
probate to make all records in their custody open
and available to the public, and the Wisconsin Open
Records Law, Sections 19.31 to 19.37, Stats.,[fn1]
require disclosure of the terms of the settlement.
We believe they do, and we therefore reverse the order.
The facts are not in dispute.
Sally Jo and Hans Zimmer were murdered on
or about May 23, 1983.
Shortly thereafter, their adopted son,
Peter Zimmer, then fourteen years old, entered
a plea of no contest to a juvenile delinquency
petition alleging that he killed them.[fn2]
He was ordered institutionalized until
his eighteenth birthday.
The Zimmers left no wills, and the probate court
eventually determined that Peter Zimmer was
their sole heir.
As such, he normally would be entitled to
inherit their entire estates.[fn3]
However, Section 852.01(2m)(a), Stats. (1983-84),
prohibits one who "feloniously and intentionally"
kills another person from inheriting any part
of that person's estate.
Because Section 852.01(2m)(b), as it read at the time,
required proof of a judgment of conviction in order for
the prohibition to attach, a question arose as to
Zimmer's eligibility to inherit the estates, for
juvenile delinquency proceedings do not result
in criminal convictions.[fn4]
In April, 1987, the personal representative of the
parents' estates brought an action to determine
heirship, alleging that Zimmer, having "feloniously and
intentionally" killed his parents, should be prohibited
from inheriting under Section 852.01(2m), Stats.
Zimmer opposed the petition and requested a jury trial,
which was scheduled for later in the year.
In June, the parties reached a settlement in the case.
They filed the settlement agreement with the
court and sought its approval.
The agreement purportedly resolved all disputes between
the personal representative and Zimmer and proposed
a final distribution of the two estates.
It also contained language purporting to keep
the terms of the settlement confidential
and excluding them from the public record.
The court held a brief hearing, at which no evidence
was taken, and approved the settlement.
The court also granted the parties' request
to place the agreement under seal.
Sometime thereafter the news media filed
a written request with the court to
allow them access to the agreement.
The trial court scheduled a hearing on the request.
Again, no evidence was taken, but the court heard the
arguments of counsel for the news media and the
personal representative, who opposed the
The news media argued that Section 59.14, Stats.,
together with various provisions of the open records
law gave them a right to see the stipulation.
The record does not reveal the nature of the
estate's objections to opening the file.
The trial court denied the media's request.
Recognizing that the stipulation was a public record
subject to Section 59.14, Stats., and the open records
law, and, further, that the law and public policy of
the state presume that the public has a right to
inspect court records, the court proceeded to weigh the
competing interests and ruled that the file should
The court also entered an order allowing the news media
to intervene in the action for the limited purpose of
contesting the open records issue.[fn5]
The estate argues first that this is not an "open
records" case at all, but one involving the court's
"inherent authority" to control judicial proceedings.
It contends that the trial court "has the inherent
power to seal its files in the administration of
justice," and that it properly exercised that power in
this case. As we have noted, both the trial court's
analysis of the issues and its ultimate decision were
based on the common and statutory law governing the
public's access to public records.
There was no discussion of the court's inherent powers.
Nonetheless, the estate argues that we should sustain
the decision in deference to the inherent authority of
the court to administer justice.
The estate's argument is grounded on three Wisconsin
State ex rel. Bilder v. Delavan Tp.,
112 Wis.2d 539,
334 N.W.2d 252 (1983);
State ex rel. Journal Co. v. County Court,
43 Wis.2d 297,
168 N.W.2d 836 (1969); and
State ex rel. Ampco Metal v. O'Neill,
273 Wis. 530,
78 N.W.2d 921 (1956).
In Journal Co., the trial court suppressed its own
decision in a child custody case in order to keep its
terms confidential while discussions were undertaken
with judges in another country in which the decision
would have to be enforced.
The supreme court, noting simply that the "inherent
powers of the court" can, in some cases, "go beyond
those conferred by statute," stated that it could find
no authority permitting a court to withhold a decision
from the public and overturned the trial court's
Id., 43 Wis.2d at 311-12, 168 N.W.2d at 843.
Ampco Metal was an "open courtroom case,"
not an open records case.
It involved testimony relating to alleged trade
secrets and it presented, in the court's words,
one of "those rare situations where justice
cannot be properly administered" without
taking certain evidence in camera.
Id., 273 Wis. at 539-40, 78 N.W.2d at 926.
We do not see either opinion as justifying the
conclusion that the court's action in this
case was undertaken in the proper exercise
of its inherent powers.
The last case, Bilder, involved the
sealing of court records.
The action concerned the suspension of a town
police chief, and at some point the
parties settled their dispute.
In approving the settlement, the trial court ordered
the file sealed on the officer's representation that
opening the pleadings and various exhibits to the
public would damage his reputation.
As in this case, several newspapers intervened in
the proceedings seeking an order opening the file.
Again, as here, they based their right to access on
Section 59.14, Stats., and the open records law.
The supreme court affirmed the trial court's
decision requiring disclosure.
The court noted first that once the exhibits became
part of the court proceedings, they became public
records as a matter of law under Section 59.14, Stats.,
and that that statute gives the public the "absolute
right" of access to such records, subject only to two
restrictions not relevant here.[fn6]
Bilder, 112 Wis.2d at 553, 334 N.W.2d at 260.
The court then stated:
There may be a third exception to the. . . "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. Id. at 556, 334 N.W.2d at 261.
The court went on to state, however, that before any
question of inherent powers would even arise, the party
seeking closure must "overcome the legislatively
mandated policy favoring open records . . . ."
Bilder, 112 Wis.2d at 556, 334 N.W.2d at 261.
The court then discussed the reasons advanced for
closing the file in light of state statutes and other
indicia of public policy favoring access and concluded
that it need not decide "whether a circuit court may
ever use its inherent power to seal court documents,"
because "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."
Id. at 559, 334 N.W.2d at 262.
We reach the same conclusion here.
The issue of inherent powers does not arise because
the strong public policy favoring access to
court records has not been overcome.
As we have noted, Section 59.14, Stats., requires
registers in probate, in addition to circuit court
clerks, to open their records to the public.
In addition, the "Declaration of Policy" accompanying
the open records law provides in part that all persons
are entitled to the greatest possible information
regarding the affairs of government and the official
acts of those officers. . . who represent them.
Further, providing persons with such information is
declared to be an essential function of a
representative government . . . To that end, sections
19.32 to 19.37 shall be construed in every instance
with a presumption of complete public access,
consistent with the conduct of governmental business.
The denial of public access generally is contrary
to the public interest, and only in an exceptional
case may access be denied.
Sec. 19.31, Stats. (emphasis added).
We begin our inquiry, then, with the presumption that
the public has a right to inspect the settlement
agreement, that any exceptions to the rule of
disclosure must be narrowly construed, and that denial
of access to the agreement is contrary to the public
interest and will be tolerated only in the "exceptional
Oshkosh Northwestern Co. v. Oshkosh Library Bd.,
125 Wis.2d 480, 482,
373 N.W.2d 459, 461 (Ct.App. 1985).
And the fact that the parties seeking disclosure are
not private citizens with a particularized interest in
the records, but rather representatives of the
commercial news media, does not in any way diminish
their right of access to the materials.
Indeed, "if the media is denied access to the affairs
of government, the public for all practical purposes is
denied access as well.
A democratic government cannot long survive
State ex rel. Newspapers v. Showers,
135 Wis.2d 77, 81,
398 N.W.2d 154, 156 (1987).
A third party's right to disclosure of public records
under Chapter 19, Stats., is not absolute; it is
presumptive: "[T]he general presumption of our law is
that public records shall be open to the public unless
there is a clear statutory exception, unless there
exists a limitation under the common law, or unless
there is an overriding public interest in keeping the
public record confidential."
Hathaway v. Green Bay School Dist.,
116 Wis.2d 388, 397,
342 N.W.2d 682, 687 (1984).
The estate does not claim entitlement to any statutory
exemption from the provisions of the open records law,
and we are satisfied that none exists.
Nor does it argue any common law exceptions.
When this is the case, the presumption of disclosure is
implemented through a "balancing" of the public
interest of free access against the public
interest in nondisclosure.
Where a request for disclosure is made to the custodian
of the record, the custodian "must weigh the competing
interests involved and determine whether permitting
inspection would result in harm to the public interest
which outweighs the legislative policy recognizing the
public interest in allowing inspection."
Newspapers, Inc. v. Breier,
89 Wis.2d 417, 427,
279 N.W.2d 179, 184 (1979).
Before access may be denied, the "strong presumption"
of disclosure must be rebutted by the party
C.L. v. Edson,
140 Wis.2d 168, 182,
409 N.W.2d 417, 422 (Ct.App. 1987).
If the custodian denies access, he or she "must state
specific public-policy reasons for the refusal . . .
[and] must satisfy the court that the public-policy
presumption in favor of disclosure is outweighed by
even more important public-policy considerations."
Newspapers, Inc., 89 Wis.2d at 427, 279 N.W.2d at 184.
In short, "there is an absolute right to inspect a
public document in the absence of specifically stated
sufficient reasons to the contrary."
Id., quoting Beckon v. Emery, 36 Wis.2d 510, 518, 153
N.W.2d 501, 504 (1967) (emphasis in original).
In this case, the circuit court was, in effect, acting
as the custodian of the record when it decided to seal
the file and stated its reasons for doing so.
Our task on appeal, therefore, is to "decide as a
matter of law whether [those] reasons . . . are
Bilder, 112 Wis.2d at 557, 334 N.W.2d at 261.
The trial court, believing that if the terms of the
settlement agreement were to be made public the parties
would repudiate it and proceed to trial, gave the
following reasons for sealing the record:
(1) because of the need to impanel a large number
of prospective jurors and to sequester the
jurors eventually selected during a week-long
trial, the trial would be expensive to the
(2) "projected attorney fees" billed to the
estate could approach $20,000; and
(3) the deceased parents' relatives feared any
contact with Zimmer.
Then, balancing those factors against the public
interest in access to the records, the court
concluded that disclosure was not warranted.
We have no doubt that the trial court was acting
in good faith and in the honest belief that
the balance struck was a proper one.
We, however, strike it in the other direction.
First, as to the possibility that disclosure of the
terms of the settlement might lead the parties to
void it and proceed to an expensive trial, it is
just that a possibility for no evidence
was taken on the question.
Moreover, we do not believe that the public's right to
inspect public records is necessarily outweighed by
the fact that such inspection might possibly lead
to a trial which might, in turn, result in added
expense to the county and the parties.
The state and county bear a large portion of the
cost of any trial, as do the litigants.
That is the law. And the parties to this lawsuit were
willing to take their claims and defenses to trial
thus bearing their own expenses for costs and attorney
fees up to the time the case was settled.
We do not consider the interest in avoiding the
possible expenses of a possible trial to constitute the
type of "overriding public interest" necessary to
overcome the strong presumption favoring disclosure.
Nor are we persuaded by the estate's suggestion that
the trial court's reference to possible trial expenses
was just another way of implementing the public policy
encouraging settlement of court cases, and that this
policy should take precedence over any interest of the
public in access to the settlement documents.
While there are no Wisconsin cases on point, we favor
the rationale of the United States Court of Appeals for
the Third Circuit in
Bank of America Nat. Trust v. Hotel Rittenhouse,
800 F.2d 339 (3rd Cir. 1986),
resolving a similar issue.
The federal courts recognize an open records
presumption nearly identical to that existing in
Wisconsin there is a "strong common law presumption"
favoring access to public records, which may be
overcome only by a showing of an "overriding" interest
Bank of America, 800 F.2d at 344.
And, to implement the presumption, federal courts, like
our own, must "balance the factors favoring secrecy
against the . . . presumption of access."
Id. The Bank of America court, ruling that the parties'
agreement to keep the terms of a settlement
confidential could not overcome the presumption,
reasoned as follows:
We acknowledge the strong public interest in
encouraging settlement of private litigation.
Settlements save the parties the substantial cost of
litigation and conserve the limited resources of the
judiciary. . .
Once a settlement is filed in the district court,
it becomes a judicial record, and subject
to the access accorded such records.
Such public access serves several. . . important
interests . . . . First, it promotes "informed
discussion of governmental affairs by providing the
public with [a] more complete understanding of the
judicial system" and the "public perception of fairness
which can be achieved only by permitting full public
view of the proceedings."
Disclosure of settlement documents serves as a
check on the integrity of the judicial process.
. . . .
Moreover, the district court did not rely on any
particularized showing. . . but instead only on the
general interest in encouraging settlement. . .
That is not enough.
Even if we were to assume that some settlements would
not be effectuated if their confidentiality was not
assured, the generalized interest in encouraging
settlements does not rise to the levels of interests
that. . . may outweigh the public's . . . right of
access. [Citations omitted; bracketing in original.]
Id., 800 F.2d at 344-46.
We adopt that rationale here and hold that a
generalized interest in encouraging settlement of
litigation does not override the public's interest in
access to the records of its courts.
As indicated, the trial court also referred to the
other relatives' "fear" of Zimmer as a compelling
reason to deny access to the settlement documents,
although it conceded that it had no "evidence" on
which to base this "finding."
The estate, picking up on the court's statement,
asserts in its brief again without evidentiary
support that disclosure would cause "trauma" to
the relatives and would "harm [them] by . . .
reviving their fears of Peter Zimmer."
The estate then states: "Such an effect
offers no public benefit."
The question, however, is not whether revival of
certain parties' fears is of benefit to the public.
That is nonsensical.
The question is whether avoiding the possibility
of that revival is of such overriding public
interest that it should prevail over the
public's right of access to court records.
We believe it should not.
The estate has referred us to only two cases, both
from other states, in which the sealing of depositions
and other court files was upheld because of danger to
News-Press Pub. Co., Inc. v. State,
345 So.2d 865, 867 (Fla. Dist. Ct. App. 1977),
the court, in dicta, simply acknowledged that access to
sealed depositions in a first degree murder case might
be denied under the court's "inherent power" upon a
showing that disclosure would endanger a person's life.
In the other,
Estate of Hearst, 67 Cal. App. 3d 777, 784 (1977),
certain records in the probate of the estate of a
member of a well-known newspaper publishing family
were ordered sealed in light of "serious danger" to
family members who had been "target[s] of a series of
As we have noted, and as the trial court itself
conceded, there is no evidence in this case none was
taken at the hearing to support even a possibility
that members of the Zimmer family would face any danger
by allowing public access to the settlement records.
Certainly there is no suggestion that their lives are
in danger or that they would be subject to the type of
threats at issue in the Hearst case.
C.L. v. Edson, supra, is more to the point.
In that case, a newspaper intervened in a civil action
seeking to compel disclosure of settlement documents
that had been ordered sealed by the trial court.
The case involved allegations that various persons
associated with a hospital and psychiatric clinic had
sexually abused several minors in their care.
The lawsuit was settled, and the parties stipulated
that the settlement records be sealed to protect the
interests of the children and to "`avoid further
psychological trauma'" to them.
Id., 140 Wis.2d at 174, 409 N.W.2d at 418-19.
Unlike the situation here, where the record contains
only the trial court's surmise that a possible trial
might revive the relatives' "fears," the trial court in
C.L. heard expert testimony that the children could
suffer psychological harm by allowing public access to
the settlement papers.
Id. at 184, 409 N.W.2d at 423.
On appeal, we concluded that in view of existing public
knowledge of the case, such "potential harm" would be
only "marginally damaging at worst," and rejected the
argument that the public interest in the welfare of the
children weighed against disclosure.
C.L., 140 Wis.2d at 184, 409 N.W.2d at 423.
There is no suggestion in the record before us that the
trial court's concededly speculative reference to the
relatives' "fear" of further contact with Zimmer is any
less "marginal" than the children's interests in C.L.
interests we held to be subservient to the strong
public interest in access to court records.
Finally, to the extent that the court's discussion
of the interests of the family may be considered a
determination that their privacy interests override
the public interest in disclosure, we reject that
assumption as well.
As we noted in C.L., the argument that the "public
interest in protecting the privacy of individuals
outweighs the need for public disclosure . . . has
been rejected in numerous cases."
Id., 140 Wis.2d at 185, 409 N.W.2d at 423.
By the Court. Order reversed and cause remanded
with directions to grant the appellants' request
for access to the court records.
[fn1] The access portions of the open records law
give all members of the public the right to
inspect all public records.
The essential provision of the open records
law is that "any person who requests
inspection or copies of a public record . . .
. has a right to inspect it."
Secs. 19.32(2), 19.32(3) and 19.35(1)(a),
Stats. The law includes "any court of law" in
its definition of the persons and entities
subject to disclosure demands.
[fn2] At the time, the juvenile code allowed only
juveniles sixteen or older to be waived into
adult court. In the wake of the Zimmer case,
the laws were amended to allow waiver in
first or second degree murder cases if the
juvenile is fourteen or older.
Sec. 880h, 1987 Wis. Act 27,
Section 48.18, Stats.
[fn3] The trial court estimated the estates
to be worth just under $89,000.
The general inventories filed in probate
court, however, indicate a total inheritance
including property not subject to
administration of some $375,000.
[fn4] Here, too, the laws were amended after this
case to deny inheritance to one adjudged
delinquent in connection with the decedent's
Sec. 852.01(2m)(bg), Stats.
[fn5] Contrary to the estate's argument, and for
the reasons stated in C.L. v. Edson, 140
Wis.2d 168, 174-77, 409 N.W.2d 417, 419-20
(Ct.App. 1987), we see no error in the trial
court's after-the-fact order allowing the
news media to intervene in the case.
[fn6] The "exceptions" recognized by the court
would allow closure in cases where it is
specifically authorized by statute, or
where disclosure would violate
112 Wis.2d at 554-55,
334 N.W.2d at 260.
The estate does not suggest that there
is any statutory or constitutional
authority for closure in this case.
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201 Wis.2d 442 (Ct.App. 1996)
549 N.W.2d 451
FOR CLEAN GOVERNMENT v. LARSEN,
166 Wis.2d 159 (Ct.App. 1991)
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IN MATTER OF ESTATES
151 Wis.2d 122
442 N.W.2d 359