State Ex Rel. Newspapers, Inc. v. Circuit Court for Milwaukee County

Inc., WTMJ, Wisconsin State ex rel. Newspapers, Inc., Bay Gazette, Green Press WISN-TV, Division Corporation, of Hearst Radio and WISN WBTT Radio, Petitioners,

v. the Honorable Circuit County, Court for Milwaukee Connors, presiding, Arlene D. Certain Unnamed Prospective Attorney Defendants, District for Mil County K.M., waukee Respondents.†

Supreme Court Argued April 30, No. 1985.—Decided 1985. 8 5 -0461-W. June (Also reported 209.) in 370 N.W.2d pending. Motion for petition † reconsideration This was not press. disposition decided at the time the volume went Its reported in a later volume. petitioners joint For the petition there was a for su- pervisory by Christensen, writ filed Robert David A. Lucey Foley Lardner; Flynn, and & and Matthew J. Ralph Quarles Milwaukee, A. Weber Brady, and & all argument by Flynn and oral Matthew J. Robert A. and Christensen. respondents,

For circuit court for Milwaukee county Connors, and the Honorable D. Arlene there was response by Balistreri, Thomas J. attorney assistant general, response with whom on the was Bronson C. La Follette, attorney argument general, by and oral Mr. Balistreri. respondents,

For the prospective certain unnamed de- fendants, joint response there by Stephen was a M. Glynn, James A. Walrath Shellow, Glynn, and Shellow & S.C.; and William Coffey M. Coffey, Coffey & Ger- aghty, all Milwaukee, argument Stephen by and oral Glynn. M.

For respondent, attorney district for Milwaukee county, there response was a by McCann, E. Michael attorney, Blinka, and Daniel D. assistant district

district argument by Mr. attorney, and oral McCann. respondent, K.M., response by there For was Kondos, A. Daniel P. Michael Pollack and Daniel P. Ron- argument Offices, Milwaukee, Law dos oral Michael A. Pollack. Petitioners,

HEFFERNAN, Chief various Justice. requested organizations, media of a the issuance 809.71, writ, pursuant supervisory 809.51 and secs. Stats.,1 commanding the circuit court for Milwaukee county, presiding, the Honorable Arlene D. Connors 968.02(3), proceeding pending conduct in sec. her, K.M., In before entitled re Petition criminal divi proceedings sion case no. L-002-C. We hold that such presumptively open are to may be to only upon showing closed substantial, compelling a a reason to do so. in the The instant case could not proper in the exercise of her discretion conclude that there grant was such reason. Therefore we petition supervisory for a writ. alleged

This by matter concerns assault two sexual professional players (defendants) football upon a female (complainant) dressing dancer in the room of a Mil- nightclub. waukee It is sufficient here to note this incident has received substantial attention in the state by media and the versions the incident each of the alleged participants vary. defendants, The who have not by been media, identified some of the state’s claim the by incident was consensual as demonstrated the conduct complainant. of the She asserts there was no consent. investigation After incident, of the the Milwaukee County Attorney District refused to issue a criminal procedures 1Pursuant 809.51(2), to the in sec. we did not deny petition parte, responses ex but written ordered oral argument. probable a lack of cause the basis of complaint, not on guilt inability prove at trial. perceived his but publicly: He stated considering case, of this carefully all “After elements prove will be unable have determined that the state

we the file guilt beyond doubt. To men a reasonable of the two third-degree charges when we be- sexual assault jury guilty men not would not lieve that a will find the justice. lengthy, bruising A trial be with consent the interests of ending guilty a defense with a not ver- as young dict is not in the best woman. interests expression “This decision is not an of belief young gave again, statement, woman It consent. presented jury, that on the evidence that would be to the jury beyond we not able to convince a a reason- given. doubt able that consent was believe there We overreaching was indecent and immoral sexual two men. We believe the conduct of the men two to be reprehensible, depraved. shameful and believe that We professional their status players as football had a role psychologically exploiting young woman.” attorney’s throughout district proceedings his in- vestigation were not petitioned then County the Milwaukee assign

Circuit Court complaint to issue a under sec. : “If attorney a district refuses or is unavailable to issue complaint, judge may permit a circuit filing of a complaint, judge if the probable finds that there is cause to person believe that charged the to be has committed an offense conducting after hearing. If the district attorney has refused to complaint, issue a he or she shall be hearing hearing informed of may the and attend. The parte shall be ex without the of cross-ex- amination.” assigned matter Judge was Connors. initially

She indicated she would testimony take from various witnesses under oath in presence clerk, complainant, reporter, counsel, defendants

court public. However, objection by the and defend- media, at counsel for the ants and after which permitted complainant, were defendants and the state Judge argue, her decision. Connors reconsidered judge proceeding ruled that did not involve “sitting open of a court” and thus did not be 757.14, under sec. Stats.: sittings every every “The court shall be may freely except same, citizen provided by attend the if otherwise persons charged law on the examination of crimes;

with provided, that when in case a cause of a siding where the pre- scandalous or obscene nature trial justice may from the exclude room sitting necessarily court all minors not present parties as or witnesses.” She held that accusatory matter was stage, complaint no criminal issued, had been thus proceeding exempt was from the statute. She also concluded Bloomer, that under v. Bloomer 197 Wis. (1929), N.W. 734 has the discretion to close courtroom to the justice where, in the interest of proper under and compelling circumstances, salacious may presented. Judge evidence Connors stated that under her power” “inherent proceedings, to close and be cause of the “compelling” existence circumstances in particular case, should be closed. Those circumstances following: Connors stated were the Although “1. had asked hearing, she did not realize the ‘traumatic effect’ that open hearing an and testimony, have on her and she family her subjected should not be to such an ‘or- deal.’ might “2. Witnesses public’s inhibited pres- ence, thereby impeding the search for truth. “3. The overall ‘salacious, testimony’ obscene presented would be could be offensive to the 504 likely in- eventually issued, charges were “4. If it diffi- degree publicity would make pretrial ordinate jury. impartial impanel an

cult to if accusatory and even only an “5. This was de- issued, charges eventually revelation were no defendants would cause ” to the of the incident tails suffering.’ ‘unnecessary agony or reasonable no also found that there were Connors her ul- added that to a closed and alternatives charges ren- would be on the issuance of timate decision open court. dered appeals a to issue court of

Petitioners then asked the open. proceedings requiring to be supervisory writ opinion reported In 124 N.W.2d at Wis. 2d 370 request.2 (Ct. App. 1985), 295 the court denied Despite proceedings, open the court a tradition of court 968.02(3) pro concluded several sec. for reasons a ceeding presumptively to the did not have to be 2 supervisory petitioners petition writ, In addition to for a subsequently petition also for review of the court filed appeals’ decision. As in the Judicial Committee’s noted Council provide 809.71, procedures an avenue Note of 1981 to sec. both practical to this One the two is that court. difference between petition supervisory for a writ is set over for full consideration this court on of four or its merits affirmative vote petition justices, granted more whereas for review is justices. Supreme affirmative vote of Court Internal three See Wisconsin Operating Procedures, (Aug. Wis. Bull. B. 1984). We need not dwell this case on that or approaches. additional differences between the two There were sufficient present fully regardless votes consider this case of the -manner bring chosen to it to this court’s attention. We also neither granted petition responses nor for review ordered argument petition thought oral a writ for had we not legal present novelty importance issues were of sufficient justify Further, way this court’s attention. either we must proceedings decide as a matter of law whether these must he opened presumptively judicial and, if an closed exercise of involved, discretion is whether that discretion was Since abused. petition unnecessary case, was therefore in this review it is dismissed. Primarily, expressly statute did the itself not re

quire proceeding— openness nor function did the of the attorney’s basically a check on the district not decision complaint sitting to a issue of a court. —constitute justified Accordingly, by closure did not to have requiring “strict standard” the existence of a “com pelling” Rather, judge’s reason. it within the was dis particular cretion to close that case discre tion possi was not abused. There was “reasonable bility” open hearing that an prob result contemplated. lems Connors petition Resolution of this calls for us to resolve sev- First, 968.02(3) eral issues.3 pre- a sec. proceeding sumptively open given Second, or pre- closed? such a sumption, legal what by are the factors to be considered judge the circuit determining whether it should be given overborne in Third, instance? did this recognize properly such factors and was there a basis in discretionary the record for her determination? We hold that a 968.02(3) hearing subject sec. to presumption openness the same applies to most judicial proceedings in Wisconsin.4 This is not based 3 opinion any potential unconstitutionality This will not address 968.02(3) by parties sec. since it has been raised at stage proceedings. questioned of the It could be under separation powers judicial doctrine whether branch of government power should be able to interfere with the normal charges of the executive branch to decide whether criminal should But issued. see Washington, State 83 808, v. Wis. 2d 266 (1978) (constitutionality N.W.2d proceedings 597 of John Doe upheld) ; State ex rel. Cannon, 368, Kurkierewicz v. 42 Wis. 2d (1969) (discretion 166 attorney prosecute N.W.2d 255 of district subject legislative direction). held The fundamental fairness process procedure aspect due might of the entire also be challenged, given hearing parte statute is ex without of cross-examination. 4 This hearing conclusion is limited to circumstances when the attorney occurs because the district “refuses” to issue com plaint. openness hearing The issue of the of a when the district 506 “sitting hearing ais such a. a conclusion pretrial meaning 757.14. Some of sec.

court” within sitting of the court. abe deemed been activities Tribune v. Circuit rel. La Crosse ex See, e.g., State (1983) (voir 460 340 N.W.2d Court, 2d 115 Wis. Newspapers, Inc. v. Cir ; rel. ex proceeding) State dire (1974) (im 66, 221 Court, N.W.2d 2d cuit Wis. proceeding). But a sec. Doe munity in John sitting The stat a court. is not proceeding before is to be provides that expressly ute express distinction be judge and is an there a circuit (7), 967.02(6), a court. See sec. a and tween Stats, “judge” “court”). (defining This court has and including recognized cases that distinction several openness presumption Rather, cited above. the those upon here is based other factors.

Initially, express pro- no the statute itself contains legislative secrecy. Although that vision for a direction might always the should be closed not neces- sarily enforceable, it at least have indicated legislature secrecy. presumption that the intended a hearing “may” statute didn’t even indicate the pertaining be secret as does sec. 968.26 to John Doe proceedings. important, 968.02(3) hearing designed

More a sec. is scrutinizing attorney’s to be a method of the district complaint decision prose- to issue a decision which the —a usually eye. cutor very makes out of the Thus the purpose possible of the statute —to make the examina- charging process tion of the in the rare instance— procedures would be defeated if the were closed for although other than Also, reasons. this is sitting court, judge not a formal of a per- is still attorney complaint, is “unavailable” to issue a the other basis for invoking procedures 968.02(3), of sec. is not before us.

507 judicial-related forming thereby function a and charged responsibility impartiality fair and with parties proceeding expect ness. The at such thorough hearing, all of conduct examine key evidence, witnesses available relevant dispassionate, render a on whether unbiased decision probable Trib cause exists. As we noted La Crosse une, great system virtue in our American court it is so that all will know that courts, government, defending as are instruments suppressing rights people. and not 2dWis. at at A N.W.2d 470. under conducted prosecutor’s this statute is not a check charges; additionally, decision to file it is a check performed judicial under the tradition of fairness and openness system provides. that our American of law jurisdictions required openness Some under similar See, circumstances. e.g., Radio, Rothe, KFGO Inc. v. (N.D. 1980). 298 N.W.2d 505 presumption A openness, however, does not mean conducting that a 968.02(3) hearing a sec. power proceedings loses to close the under cir some cumstances. We have held numerous occasions that a has the power court inherent to exercise the discretion to close See, courtroom to the e.g., La Crosse Tribune; judge conducting Bloomer. A a sec.

hearing has authority subject same and is same authority. limitations on that

The standard to met before that discretion can be exercised is strict. We in held La Crosse Tribune that necessary trigger circumstances the discretion to judicial close a proceeding “compelling,” must be “sub stantial,” weighty and “most overwhelming.” and 115 2d 241, Wis. at 234-36, 467, 340 par N.W.2d at 470. The ticular factors justify given any closure vary instance will depending upon the nature of the proceeding.

508 968.02(3) hearing,

In might a sec. several factors justify conceivably closure. The salacious nature of the might parties evidence embarrass or somehow public threaten the interest. The and other might witnesses secrecy harassment, want to avoid in etc., timidation, either pub from the defendants or the lic, the presumably likelihood of which would be inten by open proceedings. potential sified defendant might protect desire privacy reputational closure to interests, jeopardized by openness which could be should charge a criminal not result. policy There is a protecting reputations interest of citizens. News papers, Breier, Inc. v. 417, 89 430, Wis. 2d 279 N.W.2d (1979). type procedure In this there is no present rebuttal or to counter evidence. The resulting possibility of unrefuted false accusations would certainly reputational not serve interests. Finally, as suggested Tribune, legitimate in La might Crosse fear publicity exist that substantial would hinder efforts provide a charges fair trial should criminal be even tually any given issued. In instance, appropriate other might reasons exist. particular

Whatever reasoning, we indicated in La Crosse initially Tribune the trial should recite on the compel record the factors that closure and why such presumption factors override openness. process The entire must conducted demonstrably must be a rational one. rationality it must be shown on record, evincing that the con clusion was specific reached on facts of record or which reasonably are derived inference from the record. 236-37, Wis. 2d at 340 N.W.2d at 468. The conclu sion that weighing factors in favor of pres closure are ent must be based on articulable facts known to the court unsupported rather than hypotheses conjecture. See

509 Edwards, 1289, generally (7th U.S. v. 672 F.2d 1294 1982). Cir.

Thus, by once factors considered to be suffi compel appellate stated, cient to closure are the focus of review is whether abused her discretion de ciding justify there were sufficient facts of record to legal present. conclusion that those factors were A discretionary upheld product act to must of a process rational mental which the facts of the record and the law relied are stated and are considered together purpose achieving for the a reasoned and Jasper reasonable determination. Jasper, v. 107 Wis. 59, 64, 792, 2d (1982). reviewing 318 N.W.2d 795 In alleged question abuse of discretion the is not whether appellate court would have reached the same de cision, but whether under the applica facts and with the legal tion of the correct standards, a reasonable trial judge could have particular reached a conclusion. Mc Cleary State, v. 263, 49 Wis. 2d (1970). 182 512 N.W.2d appellate An court will not find an abuse of discretion unless it is evident that there was no rational basis for decision, trial court’s is, judicial a reasonable light mind in of the law facts could not have reached the conclusion it did. Wisconsin Public Service Corp. Krist, v. 381, Wis. 2d 395, 311 N.W.2d (1981).

In matter, the instant we believe that all of might Connor’s reasons in some circumstances be com- pelling enough to order proceeding. closure of the How- ever, none sufficiently supported by the record in this provide case to a basis for her discretionary action. Her concern potential over the traumatic effect an open hearing upon was not justified, although concern over injury such to a sexual assault usually victim is appropriate. Compainant appeared by expressly counsel and advocated an hearing. Under Judge circumstances, was therefore without Connors the capable justification, on the record or indicated factual being reasonably record, from the to con- inferred of compelled by of that was the best interests clude closure complainant. however, legitimate society’s recognize, that We con- impose criminal cern in a case not criminal truth, seek sanctions the but also to make sure damaged injured Here, that the victim is not further. complainant already requested public has the additional scrutiny proceedings. complaint In of these the event a complainant issued, day have her in court. At present stage proceedings, the in view of the publicity complainant avoided, which has not it would appear protection. that closure is needed for her Cer- tainly light protect the need to her of the circum- stances does not override in a fashion the proceedings. nature the Judge While open hearing Connors indicated that an would intimidate impede witnesses and the search for truth, the she upon failed to state the facts which such a conclusion could be reached. To the extent that her concern chilling was with might effect that publicity have complainant, appear, it would on the basis above, the facts stated complainant, who sought publicity matter, in this likely would not be in- timidated. We do not possibility overlook the very interest of the keeping pro- public might cedure caused the trial to cast jaundiced eye upon complainant’s public appear- ance. Regardless, given while the reason could abe compelling one in closure, some instances for here there was an predicate insufficient factual reaching conclusion to close on that basis. further feared that salacious, obscene

testimony likely presented would be could be of- al- However, the details of this

fensive leged of most more lurid than that sexual assault are no identity participants makes Only the assaults. episode particular matter unusual con- way facts of the case are not more cern. The episodes salacious or than dozens of other obscene sordid daily which are considered our courts basis. public’s primary protection concern is with of minors from See such information. sec. 757.14. Connors closing pro- could have satisfied concern ceedings to minors rather than to the entire As might offended, for adults be who the court no ob- has ligation prerogative protect them from truth requires unless some other circumstance a hearing. closed

Judge potential Connors’ concern inability over to ob- charges tain fair a trial should be issued is also not an adequate reason for closure within the context of this case. Defendants’ open counsel claimed that pro- an ceeding publicity would result to the extent a jeopardized. fair trial would be However, the record significant publicity reflects that a amount al- has ready generated been in this case. It is not evident that publicity given the additional proceeding to this would a render fair trial more might unattainable than it already be. Nor is it clear that a fair trial would indeed jeopardized. be requires impartial ignor- law —not jurors. Despite publicity, protections such as ant — voir dire enough

should impartial jurors insure from large metropolitan area like Milwaukee can be found. Other alternatives exist to assure a fair trial such as changes venue, instructions and admonishments to the jury, etc. any event,

In potential threat to a fair trial aris- ing out of an sec. in- in this stance speculative was much too justify closure. cognizant pub- Nevertheless, fact undue we are process In licity due trial. result less than could above, protective procedures stated addition post- course, proper resort, after conviction last motions, aside the verdict of undue trial is to set because publicity. responsibility that This and unfair handling pro- up to in media must face sensitive court ceedings. But that fact in this case under these circum- hearing. compel stances not in itself a closed does potential damage finally come to the for further We reputation by open proceeding. to defendants’ Their reputations counsel asserted that their further damaged by irreparably public hearing, even if no charges ultimately Judge criminal were issued. Connors agreed; proceeding because the was in essence to be an accusatory hearing to decide whether criminal charges issued, should revelation the intimate details certainly of the incident would not serve their reputational privacy interests. However, we do not properly believe she could have reached this conclusion based on the circumstances as then existed. .

By the time issue, Connors faced the closure reputations defendants’ already significantly had been besmirched based limited information before us Although alone. identifying them, without the district attorney publicly had stated that, very least, they at the engaged in “indecent and immoral overreaching” sexual that was “reprehensible, shameful, depraved” and and “psychologically exploit The attorney district [ive].” fur- publicly implied ther that defendants conceded sexual activity place had taken and the issue was whether consented; had thereby suggesting that de- fendants themselves admitted illicit conduct. News- papers in both Milwaukee Bay, and Green two of this largest state’s population centers, printed had dozens of alleged many in- disclosing of the details of articles cident; newspapers defendants. two those named of open 968.02(3) proceed- sec. cannot conclude

We damage ings reasonably de- could foreseen to been significantly pro- reputations further. If fendants’ ceedings by charges, are followed the issuance of criminal reputations obviously subject their will to substantial damage, any injury possible additional far excess process. merely preliminary from this If no criminal charges result, reputational privacy their and interests little, any, damage beyond will have suffered if anything, already they which has occurred. If fin- ally having be free of the accusation committed circumstances, crime. rep- Under potential these for injury utational is minor of a stat- justified. ure such that closure is conclusion, In we hold that proceed- a sec. ing opened to be in the absence a com- pelling reason for closure. There were insufficient facts justify judge’s of record to decision to close and therefore an abuse of discretion occurred.

By petition the Court. —The supervisory writ granted. stay proceedings of further before the circuit in Petition K.M. ordered this court 1985, on March is vacated. It is ordered that further proceedings in that matter shall be conducted ac opinion. petition cordance with this for review from appeals’ the court of decision is dismissed. No costs are any party. awarded to CECI, (dissenting). case,

LOUIS J. J. In this Connors exercised power her inherent as a justice determined that required precomplaint be closed to the I must dissent in this case, disagree because I majority’s holding with the that 514 Stats., hearings, pursuant (3), to sec.

precomplaint 968.02 public. object open presumptively to the I also to the are Judge majority’s substituting judgment its for that of holding that are there insufficient facts to Connors Judge precom- justify decision to Connors’ close the plaint hearing. petition super- deny the I would for a visory writ and affirm the decision of the court appeals, openness presumption which held that no hearings precomplaint attaches Con- closing hearing. not nors did abuse her discretion in the majority provides First, two reasons for its hold- ing hearings presumptively open that sec. are public: (1) express The statute itself contains no provision secrecy, (2) purpose for of the stat- attorney’s ute —to scrutinize district decision to issue complaint be hearing defeated if the were —would closed for Pages 506, other than reasons. 507. I do not justify believe that these reasons broad holding 968.02(3) hearings that sec. presumptively are public. to the majority erroneously reads something into clearly supplied the statute that was not legislature. in the statute our opinion

I legislature am of the that our did intend presumptively open public. Although the statute express does not pro contain an vision secrecy, it also does not mandate that open. I premise start with the pub lic has right no constitutional precomplaint attend a hearing. There limited to access to criminal trials under the first amendment to the United States See, Newspaper Constitution. Globe Co. v. Su perior Court, (1982). U.S. However, pretrial proceedings can often be closed to See, Gan nett Co. Pasquale, v. De (1979) 443 U.S. 368 (hearing suppression evidence). Exceptions to this have arisen under limited circumstances that are not

515 Press-Enterprise v. Co. e.g., See, this instance. present (voir (1984) Ct. 819 Court, - U.S. -, 104 S. Superior jurors in a criminal prospective of dire examination nonabsolute case). case has extended No occurring prior proceeding right access to a here. complaint, such as of a criminal issuance statutory to at no Additionally, has Stats., hearing. 757.14, precomplaint Section tend sittings every be court shall he mandates “[t] freely the same every may attend citizen public and agrees does not this statute majority . . . .” hearing 968.02(3) a sec. apply case because in this legisla Page If “sitting a court.” 506. not a open, I believe be had intended ture proceedings to con for the be not have called it would 807.04, requires judge. Also, sec. merely ducted hearings trials, oral testi and all at which 11 that “[a] mony presented, court.” shall be held is to be precomplaint equally, inapplicable This statute require that hearings, 968.02(3) not sec. does because testimony given Finally, under oath or affirmation. legislature, open proceedings contemplated by the if were provide specifically in the stat it have had to would not hearing. attorney attend the ute that the district could language super statutory A construction which makes v. Public Elec. Power fluous is to be avoided. Wis. Co. 534, Comm., 530, 110 2d 329 N.W.2d 178 Service Wis. legislature required 1983). explicitly has not Since our hearings precomplaint open, should exercising not be restricted from his or her inherent hearing. power ordering precomplaint closure of the See, Ct., State ex rel. La Crosse Tribune v. Circuit 115 (1983). 234-35, Wis. 2d 340 460 N.W.2d legislative Second, Stats., history 968.02(3), of sec. supports precomplaint hearings the conclusion that are presumptively provides 968.26, Section for a open. 516 which, statute, by the words

John Doe hearing. secret and 968. allows Sections share This identical roots. court has construed 26 authorizing closed, predecessor of as these statutes hearing. Court, secret State ex rel. Kowaleski v. District 363, 370, (1949). 419 Wis. N.W.2d Third, 968.02(3) hearing the nature of a sec. does not require open. 968.02(3) that the Section provides separate avenue a in two judge may filing permit circumstances. A circuit the complaint attorney if a to or if district refuses do so majority he is presumes unavailable to do so. The judge authority the the cannot check of the district at- torney precomplaint open. unless the I dis- agree. 968.02(3), duty Under sec. it judge is the to “probable determine if there is cause to believe that the person charged to be has committed an offense . . . .” There is no reason to believe that cannot con- thorough hearing duct a and make an unbiased deter- probable mination of cause press in the absence of the public. issuing and the In complaints, the district at- torney uses his or protect her discretion to reputa- yet charged tion of those not with a reputa- crime. The persons tion of equal such importance precom- in a plaint hearing judge, especially before a given the fact they right have no See, cross-examination. sec. 968.02(3). precomplaint at a hearing acts as surrogate attorney; district he or she must make a de- probable termination of cause. It would be unrealistic require prosecutor’s charging conference be open to the and, regard, the same neither should 968.02(3) hearing sec. open

Finally, perhaps most importantly, principles of fundamental fairness holding necessitate a that sec. 968.02(3) hearings are not presumptively open. Al- though historically, proceedings adversarial are hearings are not adversarial. public, precomplaint hearings are majority that sec. reasons applies presumption openness that

subject to the same Page proceedings 505. judicial in Wisconsin. to most distinguish majority precomplaint However, fails to that other post-complaint proceedings. I note from tra- proceedings are parte in this state criminal ex Stats, 968.12, public. See, ditionally closed to see. warrants); (arrest warrants); (search 968.04 sec. (interception or oral com- 968.28-968.31 of wire secs. (grand jury proceedings); munications) ; sec. 756.147 proceedings). Again, no case (John 968.26 Doe sec. the nonabsolute of access to has extended proceeding occurring prior the issuance of a criminal complaint. case, charges yet against

In this have not been issued yet accused. The accused are not defendants in action, although majority improperly them identifies page 512). (at as defendants The accused in case reputational protect privacy desire closure to their interests, by jeopardized open hear which would be an ing charge Newspapers, should a criminal not result. 417, Breier, Inc. v. 2d 89 Wis. 279 N.W.2d 179 (1979), public policy stressed that there is a interest protecting reputations in of citizens. 968.02 Section (3) hearing parte mandates shall be ex “[t]he right without of cross-examination.” There is no right right present to rebuttal nor the to counter hearing. parte evidence in the course of this ex False possibility accusations could be made detail with no contemporaneous stage of rebuttal. If this of the crim process finding inal public, were before there is even a probable of charge, cause or a determination to issue a potential damage reputational to interests would be enormous. reasons, these I hold that sec.

For hearings require precomplaint not does legis- majority wrongly I believe contrary. lating Thus, the when it holds to the issue appeal becomes whether the abused his or her dis- hearing. major- closing Contrary cretion ity’s position, I do believe that this court must find substantial, compelling hearing reason to close the be- judge’s fore it will affirm the discretion closure. Page Therefore, 501. I move to issue whether Judge closing Connors abused discretion in her hearing. majority provided summarizes the reasons

Judge why as Connors she believed the in this Pages 503, case should be closed. 504. I believe that the compel case, last factor is sufficient closure in this following: which is the “5. This accusatory was if even charges issued,

no tails of eventually were revelation of the de- the incident to the would cause defendants ” ‘unnecessary suffering.’ agony Page 504. agree

I with and the Connors accused that their reputations would irreparably damaged be further by a public hearing, charges even if no criminal were ulti- mately issued. As I above, have stressed these accused no present to rebut or counter evidence proceeding. course False accusations could detail, be made in possibility with no contemporaneous rebuttal. majority falsely assumes that because the district

attorney in this publicly case has released his statement and press because printed has dozens of articles dis- closing the alleged details of the incident, no further harm can reputations come to the of these I accused. significant publicity disagree.

strongly First, further Second, although open. two if the inevitable accused, these newspapers have the names of disclosed suggests, yet majority defendants, not as the who are ac- The names of these were limited. these disclosures publicized. highly not been cused have reputation privacy and injury I of believe law, can a matter be, these accused of as closing hearing. an- reason for sec. While might reasonably majority other or the in this case conclusion, have reached a different there were suffi- upon Judge cient in the which Connors facts record could reputational reasonably protection conclude privacy compelled interests of these accused closure. object majority’s substituting I strongly judg- its Judge ment Connors. Media counsel con- people ceded before the that defendants were reputation.” “substantial The record reflects that one papers petitioner Newspapers, owned Inc. has publicly stated identify it if accused there is proceeding” “some official action or court that names open 968.02(3) hearing them. An just that, sec. will do regardless charges of whether not are issued here. developed date, Based argu- the facts as ments of their counsel reasonable inferences to be drawn therefrom, Connors could the exer- given cise of discretion reputations conclude that their likely and the damaging publicity additional 968.02(3) hearing sec. engender, there was a com- pelling proceeding. reason for a closed Her decision to do so not an was discretion, particularly light abuse of procedure, fact that the charging which is matter in the prosecutor’s conference, nature of a does permit any procedure counter evidence. The is not mini-trial, for only has the produce stage evidence. process When this of the criminal finding prob- public, is even a of before there is made charge, the to issue or a determination able cause reputational enormous, only for threat to interests target but also for the accuser. of the accusation perceived griev- Victims should to discuss their be able ances with a with the assurance that their accusa- spread if the de- tions will not be before complaint. of clines authorize issuance legal principles dependent upon The involved are not veracity by publicity-seeking of accusations this “complainant.” matter what No the outcome is of these obliged open proceedings, these accused are to submit accusations, to the odium of based, perhaps, evidence, having, trial, insufficient without ever as in a opportunity to meet their reply accuser and to her attack. This situation every- is one should offend one’s play certainly sense of fair and is not conducive justice. to the decent administration of holding The majority smacks of the star cham- ber inquisitions, condemning opportunity without heard, reputational rights which weakens privacy charged yet of those not with a republic crime. In our freedom-loving people, reputational pri- interests and vacy, rights should paramount precharging in- quiries. petition

The for a supervisory writ should be denied case, and, therefore, I must dissent. I am authorized to state that Justice William G. joins dissenting opinion. Callow BABLITCH, WILLIAM A. (dissenting). agree J. I with the majority presumption openness at- taches to a 968.02, under sec. Open gov- Stats. significant ernment is a powerful check po- on the tential power for abuse government, branch of including judiciary. vitality democracy citizenry. public does,

dependent upon an informed “right indeed, to know.” always however, must be bal know, That against equally compelling involv considerations anced enacting rights. legislature, in ing The individual open meetings law, recognized when it that balance cre open govern exceptions presumptively certain to ated meetings investigations mental that involve “the of charges against specific which, persons . . . if discussed likely public, in would to have a substantial adverse be any reputation person effect of . . . involved problems investigations.” (1) (f), in such Section 19.85 Similarly, recognized Stats. this court has that balance providing judicial proceeding may that a be closed for substantial ex reasons. State Court, rel. La Crosse Tribune v. Circuit 115 2dWis. (1983). 340 N.W.2d 460 high public visibility and stature

When individuals always system, con- there is are involved in the criminal general people among public will be cern that those privileged privileged treat- treatment.1 This accorded happen. People prom- ment must not be allowed to inence, high public visibility, are entitled to no more protection anybody efforts to than else. But our they that, mindful that are en- assure we must also be open hearing titled to no less. I conclude that an under pro- less provide here presented the circumstances they are en- which that to accused than tection to the one- of the unfairness fundamental Given the titled. statute, along with by the procedures mandated sided interest of intensity publicity and the hearing statewide, I conclude generate that this will trial, charged, be rights if a fair accused’s to highly professional football visible two This case involves highly em case, visible players. involve could, It future men, officials, clergy, busi business ployers, supervisors, women, etc., etc., etc. ness damage they charged, to gravely imperiled; if are privacy reputational enormous. interests will be their Stats., 968.02, Therefore, I that while a sec. conclude hearing presumptively open, particular must be closed to the 968.02, procedures proposition of a sec.

Stats., can notions fairness offend basic hardly disputed. protections our adversarial system notably provide determining are truth absent: any right manner. the accused has no heard in right right testify, The accused has' no no to call witnesses, right right present evidence, no no to cross- accuser, right examine the no to counter false alle gations. The unfairness of the absence of the to be magnified by heard is the lack of restraints accuser, public forum, accuser. The in a is unrestrained by the normal of our constraints laws of libel and testimony slander. That public pro because in a ceeding privileged such as this Berg under the law. Hupy, man v. 2d 750-54, Wis. 221 N.W.2d 898 (1974).

That accuser, they accusations of the be true or false, libelous or not, reported will be statewide excruciating detail media, all the cannot be denied. already generated This case has intense media interest. ingredients It has all the Sidney of a Sheldon best-seller: sex, booze, an exotic-dancer, professional players. football reporting allegations of the accuser’s just will not be confined to the immediate offense; area of the it will be statewide. Unfortunately accused, however, for the it will be the accusations, accuser’s uncontradicted bereft of the benefit of evidence, cross-examination and counter that will read, heard and seen the citizens entire state. Normally, change protect of venue can an accused from the pretrial effects of pub- extensive licity. But where go, can these this, accused after charged they subsequently impartial jury are and if correctly points majority out that the law

tried? The ignorant jurors. Page How- requires impartial, 511. pro- will ever, publicity that this the one-sided impartial jurors. hardly Potential result duce can knowledge certainly jurors will have around state offense; unfortunately, complainant’s version knowledge ad- type that our normal it will be the process would never allow. versarial after But now consider alternative scenario: publicity and resultant charges justified there- decides that formal are not charges will not filed. the nature of the fore Given here, it will be small consolation to the accused and their finally that, majority states, “they families as the having be free of the crime.” accusation of committed a Page 513. out, majority rightly points

As the the accused’s reputations already significantly been besmirched. justification, however, That is not a sufficient to allow continue, besmirching anything, if it is reason it, stop devastation, complete before there is economic personal, to the accused and their families. To this point, subjected just has not the one- been sided Although accusations of the accuser. has there many been newspapers substantial publicity, and other media have not disclosed the An names of accused. open hearing will end all of If there is merit to the that. complainant’s charges, eventually; this will all come out if there charges, is no merit to her the accused deserve privacy the little reputational interests still that are left to them and their families.

In sum, procedures provided for in the statute are offensive to basic notions of fundamental fairness. Whether procedures or not these are violative con- of guarantees question stitutional is a yet that has not been legislature presented Meanwhile, this court. could appropriately procedure, address the fairness not closing by allowing by hearing, more balanced but hearing. proceeding pro- The which value prosecutor’s vides a check on the decision to refuse to charge file Clearly evident. in this attorney’s charging case is entitled to have the district put judicial scrutiny. legislature decision before The can easily accommodate the interests of the accuser with greater by providing those the accused procedural safeguards proceeding. in this accused, because their prominence, are protection anybody

entitled to no more They than else. are, however, entitled to no I less. conclude there are substantial present go interests directly rights to the fundamental enjoy. that we all principles majority opinion apply only to the unnamed accused in this case, anybody but to might in the future who find themselves accused of a crime someone who judge, asserts before a after a attorney district down, has turned them that he or she wronged. has criminally been give everyone That should pause. Accordingly, I dissent.

Case Details

Case Name: State Ex Rel. Newspapers, Inc. v. Circuit Court for Milwaukee County

Court Name: Wisconsin Supreme Court

Date Published: Jun 26, 1985

Citation: 370 N.W.2d 209

Docket Number: 85-0461-W

Court Abbreviation: Wis.