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,

Appellants,



v.



Michael MEWIS, Personal Representative

of the Estate of Sally Jo Zimmer and

Hans P. Zimmer and Peter Zimmer,

Respondents.






Court of Appeals No. 88-0390. Submitted on briefs February 6, 1989. Decided May 25, 1989.

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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.



EICH, J.



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

confidential.



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.
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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.
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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

media's request.



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

remain closed.



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]
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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.



We disagree.



The estate's argument is grounded on three Wisconsin

cases:



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

action.



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.
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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.
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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.
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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

case."



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

that burden."



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.
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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

advocating closure.



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

sufficient."



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:
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(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

     county;



(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.
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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

in closure.



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."
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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.
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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

the parties.



In one,



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

terrorist attacks."



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.
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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.



          Sec. 19.32(1).



[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,

          amending

          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

          death.



          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

          constitutional rights.



          Bilder,

          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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RELATED CASE LAW:

MUNROE v. BRAATZ,
201 Wis.2d 442 (Ct.App. 1996)
549 N.W.2d 451

COALITION FOR CLEAN GOVERNMENT v. LARSEN,
166 Wis.2d 159 (Ct.App. 1991)
479 N.W.2d 576

MAYFAIR CHRYSLER-PLYMOUTH v. BALDAROTTA,
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453 N.W.2d 922

IN MATTER OF ESTATES OF ZIMMER,
151 Wis.2d 122
442 N.W.2d 359

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