Vol. 71, No. 10,
October 1998
Supreme Court Orders
The Wisconsin Supreme Court will hold a public hearing on Nov. 17, 1998,
regarding juror confidentiality. The hearing will be held at 1:30 p.m. in
the Supreme Court Room in the State Capitol, Madison, Wis.
Juror confidentiality
In the Matter of the Amendment of Supreme Court Rules:
(Proposed) SCR 73.04 - Juror Confidentiality
Order 98-08
On Aug. 13, 1998, the Director of State Courts, on behalf of the Wisconsin
Records Management Committee, filed a petition seeking the adoption of rules
providing for confidentiality of personal identifying information concerning
persons summoned to serve and those serving as jurors in the circuit court.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Nov. 17,
1998, at 1:30 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of Wisconsin
not more than 60 days nor less than 30 days before the date of the hearing.
Dated at Madison, Wis., this 20th day of August, 1998.
By the court: Marilyn L. Graves, Clerk
Petition
The Director of State Courts, for and on the recommendation of the Wisconsin
Records Management Committee, hereby petitions the Supreme Court to adopt
and promulgate Chapter 73.04 of the Supreme Court Rules, governing juror
confidentiality for the courts of Wisconsin, as follows:
SCR 73.04
Rules Governing Juror Confidentiality
for the Courts of Wisconsin
SCR 73.04(1) Purpose and Scope.
(a)This chapter governs access to and release of juror information and
applies to circuit courts and to the director of state courts office. These
rules are to be administered in the context of the Wisconsin Open Records
Law, which states that:
"[A]ll persons are entitled to the greatest possible information
regarding the affairs of government and the official acts of those officers
and employees who represent them. Further, providing persons with such information
is declared to be an essential function of a representative government and
an integral part of the routine duties of officers and employees whose responsibility
it is to provide such information."
These rules do, however, distinguish between information about the workings
of government and its officials and information the government has on private
individuals.
(b)These rules do not apply to requests initiated by or with the consent
of the chief justice or the director of state courts to respond to the internal
business of the courts.
Comment: "Internal business of the courts" includes, but is
not limited to, case management and jury management information.
(c)Duties and responsibilities of custodians of court records under
the Wisconsin Open Records Law have not changed except as specifically noted
in this chapter.
(d)Each circuit court may promulgate local rules governing the procedures,
responsible officials or staff, and production, retention, and distribution
of information consistent with these or other supreme court policies or
rules.
SCR 73.04(2) Definitions.
In this chapter:
(a)"Custodian" means the person responsible for the safekeeping
of records held by a court. In the circuit court the clerk of the circuit
court is the presumptive custodian. In the appellate court and supreme court
the clerk of supreme court and court of appeals is the presumptive custodian.
Temporary handling of records is not custodianship.
(b)"Record" means the representation of court information
in a paper format or stored within a computer system that may be generated
electronically and transformed into a comprehensible form. This definition
incorporates section 19.32(2), Wis. Stats., as it relates to the electronic
representation of court information.
(c)"Routine report" means a compilation of data created
on a recurring basis for court use; may be aggregate or court official-specific.
SCR 73.04(3) Standards.
The following standards shall be adhered to:
(a)A juror will be identified throughout the jury selection process
only by number and not by name.
(b)Personal juror identifying information shall not be elicited during
voir dire.
(c)If upon petition and a showing of good cause the court determines
that such information is required for a fair and impartial jury trial, the
juror shall be allowed to provide that information in a confidential manner.
(d)A party may, following a jury's verdict, petition the court for access
to personal juror identifying information for the purpose of developing
a motion for a new trial or any other lawful purpose. The petition shall
include a showing of good cause to establish a compelling interest that
access to personal juror identifying information is necessary. If the court
grants access to the information, the party shall not disclose that information
to any other person or entity except as required by a court.
Comment: This section creates an exception to routine court procedure
involving jurors because of the special circumstances of these court participants
and their right to privacy. The Supreme Court recognizes the concerns of
citizens who wish to maintain reasonable privacy interests. The court has
an obligation to protect those interests to the extent possible while still
ensuring a fair and impartial jury to the parties of the case. These changes
will help create a sense of security, encourage jury service, and thereby
facilitate the creation of more representative jury panels, which will be
to the benefit of all litigants and the interests of justice. It seems likely
that identifying jurors by number will decrease juror fear, increase juror
honesty, and insulate jury deliberations from the corrupting influence of
fear. The court has an obligation to ensure that a fair and impartial jury
is found, and this charge may, in some unusual or highly complex cases,
require the examination of personal juror identifiable information during
voir dire. In these situations, the prospective juror should be given the
opportunity to provide personal juror identifiable information in a less
public environment, such as a closed courtroom or other private room. Otherwise
the juror shall be referred to by number, and a party shall not solicit
personal juror identifiable information. Personal juror identifiable information
includes, but is not limited to, name, home address, place of employment,
spouse's place of employment, children's school, telephone number, and social
security number. 1997 Act 101 created section 943.201(b), Wis. Stats., which
defines personal identifying information as name, address, telephone number,
DOT driver number, social security number, employer or place of employment,
employee number, mother's maiden name, and depository account numbers. If
a party can provide sufficient information to establish a compelling interest
that personal juror identifiable information is necessary for the development
of a motion for a new trial or any other lawful purpose, the court may release
that information to the party. The party shall maintain that information
in a confidential manner.
(e)A custodian shall not provide access to routine reports that contain
personal juror identifiable information and that are customarily used to
monitor the qualification of, use of, or payment to jurors except as required
for the effective management of the court system.
Comment: This section creates an exception to the Wisconsin Open Records
Law for certain court records involving jurors. Routine reports are created
to determine the qualifications of prospective jurors, to monitor the Wisconsin
jury system under Supreme Court Rule, and to compensate the jurors for their
service. Many of these reports contain personal juror identifiable information
about persons, which under other circumstances the person might not wish
to be made public or be required to provide.
SCR 73.04(4) Review of Rules.
The director of state courts or his or her designee shall review the
rules under this chapter annually on the first and second anniversary of
the effective date of this section and thereafter upon request of the Chief
Justice and report to the supreme court any recommendations for their modification.
Comment: It is prudent to have in place a mechanism for regular review
and revision of these rules.
This petition is respectfully submitted this 13th day of August, 1998.
D. Denis Moran, Director of State Courts
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