Wednesday, September 29, 2010


There is a reason the word "public" is in the term "public records." And the public has a particular interest in knowing what its courts are doing.

Efforts in the state Legislature have - so far - been unsuccessful in limiting the information available to the public in court records. There's a reason for that. The public has a right to know what its courts do in all possible instances - not just to information selectively sanitized. That's not a record; that's a Nixon tape.

Unfortunately, efforts continue in the state Supreme Court. On Monday, the court will consider a petition from the State Bar of Wisconsin to limit public access to certain court records, including those online. In other words, judges, prompted by lawyers, will be discussing what the non-lawyer public can read from court records.

We get it; we don't much like it, but judges seal records all the time. Our point is, whether this debate occurs in the Supreme Court's chambers or in the Legislature, any decision on whether a record is public or secret should be weighted heavily in favor of the public's right to know. And that weight derives from the knowledge that these are the public's records, not the court's, not the Legislature's and not even the defendant's. The courts and the Legislature are mere custodians.

The State Bar, understandably concerned about discrimination in housing or employment occurring against those acquitted of crimes or whose charges have been dismissed, is urging the court to make it easier to expunge these online and paper records and make them inaccessible.

We understand the argument made to us by one of the authors of the petition, Madison criminal defense attorney Erik Guenther. He explains that the discrimination is real, the Legislature has allowed expunging records in other circumstances and that the petition seeks to have circuit judges make these decisions in public hearings in which sealings can be opposed. But it still makes no sense to us to tell the people that they can't be trusted with their own records. We are not talking about state secrets or national security here but whether and how people are involved in the judicial system and the outcome of that involvement. The courts' business - in its entirety - is the people's business and, as the petition acknowledges, discrimination on the basis of arrest and conviction records is already prohibited by law.

This is simply too blunt an instrument for this problem. The justices should come down in favor of public access to all possible court records.

The article is available here.

Monday, September 06, 2010

SPD expects budget shortfall, Private bar prepares for gap in reimbursements - WISCONSIN LAW JOURNAL

The Wisconsin Law Journal details the "projected $9.5 million budgetary gap" which is expected to "delay payments to private bar attorneys for almost five months, until the next state budget cycle begins on July 1."

As described:

Madison attorney Erik R. Guenther said he personally avoids taking appointments out of principle.

While he takes advantage of various pro bono opportunities, the Hurley, Burish & Stanton attorney said that generally, it is hard to ask attorneys to take appointments at a low hourly rate and then impose an “un-bargained” delay in payment.

“That adds insult to injury,” Guenther said. “For me personally, I boycott SPD appointments because I feel it’s inappropriate to not adequately fund one aspect of the criminal justice system.”

The full article is available here.