Wisconsin Lawyer
Vol. 85, No. 11, November 2012
End Supreme Court Secrecy
What if each of us could decide for ourselves which laws we would obey? And, what if, when asked why we had decided not to obey a particular law, we could simply reply, "just because"? That's what happened last July 5, when – in a rulemaking proceeding – the Wisconsin Supreme Court refused to require its Board of Bar Examiners (BBE) to obey the state's Public Records and Open Meetings laws.
Events began in the summer of 2011, when I asked the BBE for the names and emails of people who took the July 2011 bar exam. I wanted to survey these applicants as to their evaluation of the bar exam and the entire bar admission process – and perhaps ask who might be interested in forming an advocacy group to represent bar applicants and lobby the BBE for changes in the bar admission process. In a 21st-century democracy, these purposes were pretty vanilla and mainstream. No personal or invasion-of-privacy type information was requested.
The BBE denied my request, claiming the names were confidential. When I petitioned the supreme court to order the BBE to grant my request and to require the BBE to obey Wisconsin's Public Records and Open Meetings laws in the future, the court denied both requests – thumbing its nose at Wisconsin's long tradition of open government. Although the court has stated that a decision without a rationale is irrational on its face,1 the court gave no reasons for its decision.
In adopting our state's Public Records Law, the legislature stated in the law's declaration of policy:
"In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 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."
The purpose of the state's Public Records Law is to inform the public about the actions of government officials and employees.2 In a representative, democratic form of government, voters can't make intelligent choices unless they know what government officials are doing. The Public Records Law also acts as a basic pillar of our democracy by providing public oversight of government.3 The public policy of the state, as expressed in the Public Records Law, is to provide the broadest practical access to government affairs.4
The supreme court's rejection of requiring the BBE to abide by the Public Records and Open Meetings laws is hypocritical and arrogant. Hypocritical, because the court has often emphasized the essential nature of these laws to good government when applying the laws in cases involving nonjudicial branch agencies and local government bodies. Arrogant, because all the other 61 professional regulatory boards in Wisconsin must abide by these laws. Apparently, the court believes that lawyers and judges are above all that good/honest government stuff that applies to everyone else: all animals are equal, but some animals are more equal than others.
The supreme court's action in rejecting application of the Public Records and Open Meetings laws to the BBE made the year 2012 a true "Year of Secrecy" for the court. In February, the justices (led by Justice Roggensack) voted 4-3 to exclude the public from their conferences on administrative matters, which had been held in public since 1999. In May, the justices voted 7-0 not to apply the Public Records and Open Meetings laws to the BBE, and in July they approved the order implementing that vote, but then they ordered that the order itself not be published, apparently wanting to conceal their action from both lawyers and the public. The year 2012 has been a real supreme court secrecy trifecta. What other steps to exclude the public might the court take next?
Legislators and supreme court justices love to operate in secrecy whenever they can, because it insulates them from responsibility to the public, who they are supposedly chosen to serve. A public ignorant of what public officials are doing can't hold those officials responsible for their actions. Secrecy may be a win-win for public officials, but it's a lose-lose for the public they were chosen to serve. The public cannot and should not trust in the actions of judicial branch agencies if they don't comply with the Public Records and Open Meetings laws, as all other state agencies are required to do.
What's the solution? The legislature should begin the process of a constitutional amendment to require judicial branch agencies – and perhaps the supreme court itself – to abide by the Public Records and Open Meetings laws. It's time to end this supreme court's obsession with secrecy and restore the state's reputation for good government.
Steve Levine, Madison
1 Hall Chevrolet v. Department of Revenue, 81 Wis. 2d 477, 260 N.W.2d 706, 709 (1978).
2 Building & Constr. Trades Council v. Waunakee Cmty. Sch. Dist., 221 Wis. 2d 575, 582, 585 N.W.2d 726 (Ct. App. 1998).
3 E.g., Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶ 2, 327 Wis. 2d 572, 786 N.W.2d 177; Linzmeyer v. Forcey, 2002 WI 84, ¶ 15, 254 Wis. 2d 306, 646 N.W.2d 811; Nichols v. Bennett, 199 Wis. 2d 268, 273, 544 N.W.2d 428 (1996).
4 Hempel v. City of Baraboo, 2005 WI 120, ¶ 28, 284 Wis. 2d 162, 699 N.W.2d 991.
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