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
Wisconsin Lawyer
