President's Perspective

Proposal Illustrates Lawyers' Role in Forming Public Policy

By Susan R. Steingass

In the October Supreme Court Orders column we learned that the Director of State Courts, for the Records Management Committee, filed a petition seeking adoption of a rule protecting "juror confidentiality." Under these seemingly harmless words, the petition sought far-reaching systemic changes in how jurors are selected and serve. The petition was noticed for hearing before the Wisconsin Supreme Court on Nov. 17, 1998.

The proposed rule required that jurors be identified by number, not name, in all court records and proceedings. It provided that "personal juror identifying information" (presumably name, address, place of employment, marital status, children, profession and so on) could not be elicited during voir dire. Attorneys could only obtain personal information on a good cause showing that a fair and impartial trial could not be had without it.

Obviously, this proposed rule affects the constitutional rights of litigants and the role of attorneys in the trial process, not to mention the openness of trials and jury accountability.

Time was short. The Bar used the Internet and other means to alert attorneys to this proposal. The Executive Committee met and recommended that the Board of Governors vigorously oppose the petition. On Nov. 13 the board voted overwhelmingly to do so.

Less than a week later, the Bar appeared before the supreme court to oppose the petition. Among the others joining in opposition were the Bar's Criminal Law and Litigation sections, the Public Defenders' Office, the Milwaukee Bar Association, Milwaukee County Chief Judge Michael Skwierawski and District Attorney E. Michael McCann, the Wisconsin Academy of Trial Lawyers, the Wisconsin Civil Defense Council, the Wisconsin Broadcasters Association, the Wisconsin Newspapers Association, and the Freedom of Information Council.

The Wisconsin Clerks of Circuit Court Association, a juror whose name and address had been requested after trial by a criminal defendant she and her fellow jurors had convicted, and two judge members of the Records Management Committee argued in support of the petition. In apparent realization that the proposal would implicate the right to fair trial, the two judges at the time of the hearing amended the petition to allow lawyers to obtain personal identifying information for purposes of voir dire.

That amendment was not enough to quiet the opposition. The State Bar's brief argued that the proposed rule would impact constitutionally protected rights, and that it was deeply and unalterably at odds with Wisconsin's public policy of openness, as enacted by our Legislature and enforced by our courts. We argued that there was no demonstrated need for these serious encroachments on the rights of litigants and that any proposal with the potential to affect such bedrock principles should have been made only after input from attorneys, the public, judges, the press, and others.

The Records Management Committee was created in 1984 by the Director of State Courts and charged in part with recommending statute or rule changes relating to the management of court records. Because juror questionnaires and information gathering is done by records the court keeps, the committee regarded this proposal as within its purview.

The Records Management Committee, without question, does extremely valuable work and properly proposes record-related rule changes, establishes standards and procedures for effective management of records, develops standards to ensure the proper and efficient use of advancing technologies, and recommends guidelines for retention of court records.

Though the committee is to be commended for its efforts elsewhere, the fact remains that it is composed of five judges, 10 court clerks and administrative personnel, and not one single practicing attorney. That may explain why this proposed rule, thought to accomplish a record change, in fact severely impacts larger principles and legal tenets at the heart of the trial process.

After argument, the supreme court, in accord with its own commitment to openness, deliberated in the presence of all who cared to stay and listen - a substantial number as it turned out. After a fairly short debate, the court unanimously rejected the petition. However, several justices continued to struggle with some juror concerns raised during the hearing.

The court reserved for later deliberation what, if anything, can and should be done to allay juror perceptions to the extent they exist.

One thing is for sure. We come away from this one-month whirlwind of proposal to decision, with several lessons learned. Perhaps most important among them is that basic constitutional principles and our policy of openness can never be sacrificed to administrative concerns. We also were reminded how many committed lawyers we can rally on very short notice to let our position be effectively known. As important as anything else, we were reminded that lawyers need to be in on public policy formation. The supreme court and the Director of State Courts have offered the Bar two seats on the Record Management Committee. This will help ensure that the point of view of practicing lawyers is heard before rules are proposed.

None of this means that we can forget to listen to nonlawyers in general and jurors in particular. We need to consider what we ask jurors to do and what fears they bring to their task. We must respond in a way that acknowledges their concerns yet preserves for all litigants the right to information necessary for a meaningful voir dire and post verdict relief, in zealous protection of the constitutional right to a fair trial by an impartial jury.

Wisconsin Lawyer