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