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  • July 19, 2022

    Parents Challenging School Transgender Policy Not Entitled to Anonymity

    The Dane County Circuit Court did not erroneously exercise its discretion by requiring parents who sued a school district over its transgender student policy to disclose their identities to defense counsel, the Wisconsin Supreme Court has ruled.
    A Group of School Students Depicted From Behind Walking With Backpacks On

    July 19, 2022 – The Dane County Circuit Court did not erroneously exercise its discretion by requiring parents who sued a school district over its transgender student policy to disclose their identities to defense counsel, the Wisconsin Supreme Court has ruled.

    In John Doe 1 v. Madison Metropolitan School District, 2022 WI 65 (July 8, 2022), the supreme court held that it was proper for the circuit court to require the parents to disclose their identities because otherwise defense counsel would be unable to comply with their ethical responsibilities.

    Justice Brian Hagedorn wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Jill Karofsky. Justice Patience Roggensack dissented, joined by Chief Justice Annette Ziegler and Justice Rebecca Bradley.

    Lawsuit Over Transgender Policy

    In February 2020, several parents sued the Madison Metropolitan School District (MMSD), claiming the district’s policy on transgender students violated: 1) their right to parent under Article I, Section 1of the Wisconsin Constitution; and 2) their right to exercise their religious belief under Article 1, Section 18 of the Wisconsin Constitution.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    The plaintiffs moved to proceed using pseudonyms. They also requested a permanent injunction barring the district from:

    • allowing children to “socially transition to a different gender identity at school … without parental notice or consent;”

    • preventing staff from notifying parents that their children were dealing with gender dysphoria or wanted to change gender identity;

    • using different names for students when communicating with parents. 

    Plaintiff Must Disclose Names

    The district moved to dismiss the case and postpone the hearing on the injunction until the circuit court ruled on the motion to dismiss. The circuit court denied the motion to dismiss but agreed to postpone the hearing on the injunction.

    The circuit court determined that there was a need to seal the parents’ names to keep them from the public but ordered the parents to file under seal an amended complaint that listed their names and addresses, which would be accessible to the court and to defense counsel. The parents filed an interlocutory appeal of the order.

    Multiple Motions for Injunctive Relief

    While the parents’ petition for interlocutory appeal was pending at the court of appeals, they sought the same relief asked for in the motion for a preliminary injunction by filing for an injunction pending appeal under Wis. Stat. section 808.07(2).

    The Wisconsin Court of Appeals granted the parents’ petition for interlocutory appeal in June 2020. In August 2020, the circuit court granted in part and denied in part the parents’ motion for an injunction pending appeal.

    The parents then filed for injunctive relief with the court of appeals under section 808.07(2)(a); they also cited Wis. Stat. section (Rule) 809.12, the authority usually cited by parties appealing the denial of a motion for relief pending appeal.

    Alternatively, the parents’ petitioned for injunctive relief under sections 813.02 and 809.14.

    The court of appeals denied the parents’ motion for injunctive relief pending appeal. When the court of appeals decided against the parents on the issue of the pseudonyms, they appealed to the supreme court.

    Legal System Should Be Open

    Justice Hagedorn began his opinion by writing that the general rule in Wisconsin “is that those availing themselves of the legal system should do so openly.”

    However, Hagedorn explained, the supreme court has held that court documents may be kept from the public if: 1) a statute requires or authorizes it; or 2) or disclosure would infringe a party’s constitutional right.

    Additionally, Hagedorn pointed out, the supreme court has held that a court has the inherent constitutional authority “‘to preserve and protect the exercise of its judicial function of presiding over the conduct of judicial proceedings.’”

    What About Conflict Checks?

    Justice Hagedorn explained that keeping the parents’ names from the MMSD lawyers would impair them from performing their ethical responsibilities.

    For instance, he pointed out, without knowing the parents’ identities, how could the MMSD lawyers perform the necessary conflict checks?

    Hagedorn noted that two parents had already dropped out of the suit because their lawyer had determined that their participation in the lawsuit would create a conflict for the MMSD lawyers. Additionally, keeping the parents’ names from the MMSD lawyers could affect the adjudication of constitutional issues raised in the parents’ complaint.

    “Without knowing the parents’ identities, how can the District’s attorneys inquire whether the parents have a sincerely held religious belief regarding this aspect of their children’s upbringing?” Justice Hagedorn wrote.

    Risk of Harassment and Retaliation

    The parents argued that disclosing their identities would subject them to harassment and retaliation. But Hagedorn explained that the circuit court addressed that concern by limiting disclosure of the parents’ identities to the court and the MMSD lawyers.

    Furthermore, he noted, the parents’ lawyer conceded that there was no reason to doubt that the MMSD lawyers would do the utmost to not disclose the parents’ identities.

    “Nevertheless, the parents essentially make an unfounded accusation that the attorneys on the other side will risk their law licenses, through carelessness or otherwise,” Justice Hagedorn wrote. “This pure speculation lacks merit.”

    Justice Hagedorn concluded that the circuit court had properly applied the test for restricting access to public records under section 801.21(4) and had not erroneously exercised its discretion in ordering the parents to disclose their identities to the court and the MMSD lawyers.

    Injunctive Relief Not Appropriate

    Next, Justice Hagedorn explained that the parents request for injunctive relief under section 808.07(2)(a) was foreclosed because under that section, any injunctive relief granted under the section ends when the appeal ends and the supreme court’s decision ended the appeal.

    To hold otherwise and address the issue raised by the parents, Hagedorn explained, would require the supreme court to issue an advisory opinion, something it has historically declined to do.

    With regard to the injunctive relief sought by the parents under section 813.02, Justice Hagedorn pointed out that the parents had first moved for such relief in the circuit court and that motion was still pending there.

    “Beyond complaining that the motion has not been decided yet, the parents jump right into the merits of their plea for injunctive relief, never developing an argument that the circuit court committed procedural error,” Justice Hagedorn wrote.

    The parents were arguing for a “procedural leap-frog” that “would render nugatory the discretionary review appellate courts apply when reviewing any form of temporary injunctive relief granted or denied by the circuit court,” Hagedorn wrote.

    Dissent: Majority ‘Fails Parents’

    In her dissent, Justice Roggensack argued that the majority opinion “fails parents, fails to uphold the constitution, and fails to provide parents with due process before [MMSD], acting behind closed doors, overtakes parents’ constitutional right to parent their own children.”

    The identity of any parent who joined the compliant, Roggensack argued, was irrelevant to any constitutional analysis because the parents explicitly had sued on behalf of all parents whose children are MMSD students.

    ‘Today’s Tell-All World’

    Roggensack pointed out that caselaw in four of the nine federal circuits allows parties to conduct litigation anonymously. And the supreme court, she noted, has held that a circuit court may restrict access to public records to protect the exercise of its function to preside over judicial proceedings.

    Neither the circuit court nor the court of appeals had “realistically considered what likely will occur with regard to the parents’ identities in today’s tell-all world,” Justice Roggensack wrote. “Even the United States Supreme Court, an institution that has historically demanded the highest levels of integrity and confidentiality, has been subject to unauthorized leaks.”

    Non-Decision Equals Denial

    Justice Roggensack pointed out that two years had passed since the parents filed their complaint with no decision from the circuit court.

    “By not deciding,” Roggensack wrote, “the circuit court has effectively denied the motion for a temporary injunction and the circuit court also has denied the parents’ opportunity to appeal an adverse ruling.”

    Justice Roggensack argued that the majority ignored the fact that the circuit court failed to comply with SCR 70.36(1)(b), which requires a decision on a motion for a temporary injunction within 180 days. She argued that the supreme court should address that failure by exercising its supervisory authority.

    Justice Roggensack explained that the fundamental constitutional right of parents – a right protected by both the state and federal constitutions – was essential to understanding her dissent.

    “This case is grounded in the contention that MMSD has usurped fundamental parental rights, some of which relate to healthcare decisions for their children,” Roggensack wrote. “The administration of justice requires that we not ignore the parents’ plea for a judicial decision, as the majority has done.”​

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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